THE PRINCIPLED USE OF HEARSAY IN CIVIL CASES: A TECHNICAL GUIDE TO AVOIDING TECHNICALITY

Abstract

There is misperception that the contextual evaluation permitted by the principled hearsay exception allows civil courts to freely accept hearsay evidence. In fact, there is no wholesale discount for hearsay in civil cases. The intensity with which the rule applies varies with the seriousness of the litigation, and the role played by the evidence. Indeed, regardless of context, to gain admission hearsay should be the best evidence of the declarant’s observations that can reasonably be offered, and there must be a rational basis for accepting it to be true. This paper offers a technical guide to applying these standards.