Questioning Hearsay's Formalism

Publication Title

Florida Law Review

Document Type

Article

Publication Date

2024

Abstract

The rule against hearsay has a simple premise: a speaker's out-of-court statement can be inaccurate, misleading, or downright false. This premise is being eroded by a judicial formalism under which second-hand statements now reach the jury unless the statements make assertions in declarative sentences, such as “Sam, I know you sell drugs.” The same belief conveyed by “Sam, do you still have any of those drugs for sale?” is deemed nonhearsay because it is housed in a question. The problem is that this question presents an incriminating presupposition--the speaker's expressed assumption that Sam is a drug dealer. This belief becomes a “fact” that may be used to convict Sam without assessing the absent speaker's reliability. This formalistic turn in hearsay interpretation is both wrong and harmful. It is wrong because it disregards the reliability-centered definition of hearsay held over from the common law. And it ignores the mounting linguistics, philosophy, and psychology research that shows people perpetuate lies with presuppositions just as effectively as they do with declarative assertions. The turn is harmful because when these incriminating and potentially false presuppositions evade the hearsay rule, the result is a double standard based on sentence form that is unrelated to hearsay concerns and that undercuts procedural justice. This Article is the only scholarship to address the evidentiary power of presuppositions and the first to confront formalism's capture of the hearsay definition. There is nothing special about assertions in declarative sentences; formal sentence features should cease to rule the hearsay analysis. Instead, that analysis should turn on a statement's belief-inducing function, tested by deniability: whether the absent speaker can plausibly deny the beliefs conveyed in her communication. In the absence of deniability, the speaker has *914 communicated a belief that could be inaccurate, misleading, or false. The deniability approach eliminates the sentence-form double standard and resolves a decades-long debate over how to spot hearsay in hard cases where a speaker conveys more than what she explicitly says.

Recommended Citation

Susan E. Provenzano, Questioning Hearsay’s Formalism, 76 Fla. L. Rev. 913 (2024).

Volume

76

First Page

913

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