As complicated as the above diagram is, it depicts only simple testimonial evidence. It does not depict hearsay evidence.

Hearsay is a distinctive form of testimonial evidence. Hearsay is distinctive because it involves a testimonial statement about a testimonial statement; it is an utterance about an utterance.

Hence, instead of involving (merely) an inference from an utterance to some event, hearsay involves

an inference from an utterance ---> to another utterance --> to some event

This two-stage process can be portrayed in the following way:

When testimonial evidence takes the form of hearsay (as depicted in the above diagram), two* sets of testimonial attributes** are implicated in judgments about the thrust and probative value of testimonial evidence.

This is because hearsay involves*** two testimonial reports**** and, because of this, two***** sets of testimonial attributes associated with those two****** reports must be evaluated.

So, when hearsay appears, reasoning about testimonial evidence takes the following more complex form:

A = sensory accuracy

O = objectivity

V = veracity

N = ability to narrate

[M = memory, but memory is absent in the above diagram; in the above diagram memory M is viewed as an aspect of O, as an aspect of the quality of objectivity]

The above depiction of the nature of hearsay perhaps suggests that hearsay is excluded because of its low probative value. The conclusion that the weakness of hearsay is the reason for its inadmissibility may be suggested because my account (which I have illustrated with some diagrams) emphasizes that hearsay involves a chain of inferences that is at least twice as long as the chain of inferences that one confronts when one deals with just simple testimonial evidence, just one testimonial report, testimonial evidence that does not involve a report of another testimonial report.

In sum, perhaps hearsay evidence is inadmissible because it has less probative value than simple or ordinary testimonial evidence has.

But this is probably not the true explanation for the inadmissibility of hearsay.

• For the time being please ignore the Swiss cheese quality of the prohibition against hearsay.

The weak-probative-force rationale for the hearsay rule confronts a problem of doctrinal consistency.

First, FRE 401 and 402 purport to authorize the admission of testimonial evidence that has only very slight probative force.

Second, even “simple,” or ordinary, testimonial evidence can be extraordinarily weak. But standard black letter doctrine holds that the frailty of simple testimonial evidence (because of doubts about matters such as veracity) – the frailty of testimonial evidence does not alone render testimonial evidence – even very weak simple testimonial evidence – inadmissible. (Remember the maxim: “The credibility of a witness is exclusively question for the jury!”)

The orthodox explanation for the inadmissibility of hearsay – which is the explanation first propounded by Wigmore – focuses on the role of cross-examination and demeanor evidence for the pursuit of the truth about facts (rather than on the evidential frailty of hearsay). The orthodox theory is that hearsay is inadmissible, not because it is weak, but because

the absence of the out-of-court source of the hearsay – the absence of the declarant – makes it impossible for an adversary to cross-examine that absent witness (that missing source, that declarant) in the presence of the trier of fact (e.g., the jury) and therefore makes it impossible for the trier of fact (e.g., the jury) to observe the demeanor of the (absent) witness while under cross-examination.

The thesis, therefore, is not that hearsay evidence is inadmissible because it is weak, but that hearsay is inadmissible because the nature of hearsay is such that it deprives the trier of fact of an important source of information: The use of hearsay deprives the trier of important information about the testimonial qualities of the (absent) witness, the declarant.

The orthodox explanation thus puts great emphasis on the importance of viva voce testimony (live testimony) and demeanor evidence. A closely-related ancillary proposition is that adversarial interrogation – cross-examination – is likely to elicit important “behaviors” -- demeanor – from a witness, a witness who is put in the crucible of cross-examination.

That’s the standard rationale for the hearsay rule. As we march through the hearsay rule, its parts, and its exceptions, your job is consider how well (if at all) this orthodox rationale for the hearsay rule works.

&&&

Now focus more on black-letter law. Federal Rule of Evidence 801(c) defines “hearsay.” FRE 801(c) is a codification of the common law definition of hearsay:

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Consider the following paraphrase of this basic definition of hearsay:

Hearsay: The Black Letter Definition

There is a movement afoot to "restyle" the Federal Rules of Evidence -- to rewrite them -- without chand the substance of the Rules. Restyled Rule 801(c) would read as follows:

(c) Hearsay. "Hearsay" means a prior statement -- one the declarant does not make while testifying at the current trial or hearing -- that a party offers in evidence to prove the truth of the matter asserted by the declarant.

The restyled Rule is much clearer than the current version of the Rule.

Now please consider this diagram: