Hearsay and Informal Reasoning

The Federal Rules of Evidence define hearsay as 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. \u27 A statement, in turn, is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Hearsay is inadmissible unless it falls within an exception to the rule or an exclusion from the definition. Courts and commentators often write as if the distinctions they make between hearsay and nonhearsay are consistent with informal reasoning, the inferential methods based on common experience that human beings employ in litigation as well as everyday life. There is certainly good reason to take account of informal reasoning in conceptualizing hearsay. Interpretation of terms such as assertion and assert to reflect the process people use to make everyday judgments takes maximum advantage of human experience, and is therefore easy for courts and lawyers to learn and apply. But courts, rulemakers, and scholars have failed to develop a workable and accurate model of informal reasoning on which a clear understanding of hearsay could rest. One result of that failure is the debate over the proper ambit of the hearsay rule that has recurred since the Exchequer Chamber decided Wright v. Doe d. Tatham over a century and a half ago. Conventional attempts to distinguish hearsay from nonhearsay produce baffling results. Consider one understanding of the hearsay definition, which might be called the literalist heuristic. Literalist analysis holds that, for hearsay purposes, a communication ordinarily asserts only those propositions that it literally, expressly, or directly articulates