A Different Kind of Clue

This time, I haven’t drawn from religious or mystical texts, or parables or poetry or painting, for my clues to reality. This time, I’m taking you to court, so to speak. And I’ll cite it as honorable “precedent” the fact that Kafka (who was a workers’ comp lawyer for the city of Prague) often drew from the world of law for his parables and stories. (Of course, that doesn’t prove anything, but there it is.)

Here, I’m taking up for my own peculiar purpose certain rules of evidence that speak to me in a way that no judge would likely recognize or consider. My central focus is the rule against admitting “hearsay” as valid evidence at trial.

Hearsay in the Rules of Evidence

First, let’s define hearsay in the stiff-legged language of the law:  An out-of-court statement offered for the truth of the matter that is being asserted by an out-of-court declarant at the time when he or she allegedly made the statement.
Not exactly transparent, eh? Now for some translation.

If a witness in court testifies that a certain statement was made by someone else at some other time, we call that someone else a “declarant,” meaning simply that he or she said (“declared”) something. And if that someone else did not make the supposed statement in court, and if that someone else is not going to be available to be questioned in the court about what he or she supposedly said (because, for instance, he’s dead or beyond the reach of the court’s ability to make him appear and testify), then that someone else is called an “out-of-court declarant.”

What’s important about that is that the out-of-court declarant won’t be present to be questioned about whether or not what he supposedly said was true or accurate, or even whether or not he actually said it. Why does the legal system consider this critical? Because people’s statements may, for any number of reasons, be undependable guides to the truth. The witness may be dishonest and self-interested; his memory may be faulty; he may be motivated by hostility toward the declarant who isn’t in court and therefore can’t challenge what the witness says about him.

What if the witness, Tom, testifies that Joe, who’s been murdered, told Tom before Joe died that the defendant, Sam, had been the one who killed him? (All the worse if Tom himself had a motive for wanting Joe dead.) On the basis of the hearsay rule, we won’t let the jury consider Tom’s statement about the absent Joe’s declaration as evidence that Sam did indeed kill Joe. This is rooted in the legal principle that an accused person should have the right “to confront his accuser.” He should have the chance to disprove either the honesty or the accuracy of the evidence offered against him, face-to-face with his accuser. This principle of fairness in pursuing truth and justice, older than our Constitution, appears the Sixth Amendment of our Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .”

The “Verbal Act” Exception to the Hearsay Rule

Now I beg your layman’s patience as I briefly take up certain offshoots of the hearsay rule that are also key to my story – a story which you’ll see is not, in the end, about law.

The “verbal act” and other related exceptions to the hearsay rule relate to the part of the rule that prohibits admission of hearsay as evidence of “the truth of the matter” – that is, as evidence that what the out-of-court declarant supposedly said was true in the usual descriptive, expository sense – “The sky was blue.” “I don’t know the man.” “My uncle is dead.” But hearsay may be admitted for other purposes.

It may be admitted as evidence that the out-of-court declarant actually said the quoted words, that he committed that “verbal act.” It can be admitted as evidence of the declarant’s other strong reaction (warranted or not) to something that happened or was threatened (“I’ll die if she leaves me!”), or as evidence that the statement moved someone else to do something, as with the proverbial shouting of “Fire!” in an over-crowded theater. Whether or not the building actually was going up in flames, the exclamation may be admitted as evidence of why a child was trampled by adults mobbing the aisles. Words can express or reveal emotion. Words can inflict panic or pain. Words can inspire or discourage. Even if they are not true as abstract or explanatory or descriptive statements, they have reality as actions, as events.

Now here’s a question for you to consider. Forget that we’ve been talking only about law and courtroom proceedings. Take it all as parable, and swing the window open:

What if reality is always an out-of-court declarant? What if the trial is your own trial of what is real and what is illusion?