So hearsay isn't hearsay if someone dies?

Now Roger Ailes has died this Hollywood Reporter article talks about how his death may affect the ongoing lawsuits against Fox News.

This is the bit that prompted my question.

An exception can be made to the hearsay rule if someone dies? How the hell does that make hearsay suddenly not hearsay? Isn’t it still someone saying they heard someone else say something? And the fact that the someone else is now dead surely makes the hearsay statement less reliable rather than more so for the simple reason that the dead person can’t confirm what he said. And what’s the stuff about normally such statements wouldn’t be allowed because there would be no opportunity for cross-examination? What, there’s an opportunity now he’s dead?

As long as I live I will never understand the law. Its procedures sometimes seem straight out of Alice in Wonderland. Can someone make sense of this for me.


  1. Still hearsay. But admissible hearsay.
  2. A dying declaration has to be made in anticipation of imminent death. You can’t take any old statement from a dead man and have it submitted as evidence of the truth of its contents.
  3. You can repeat anything a person dead or alive told you. As long as it is not being offered for the truth of its contents.

Dying Declaration. Because nobody would lie just before they die and about to be judged by God, right?:rolleyes:

I don’t believe the dying declaration is in play here. The dying declaration involves a statement made with knowledge of impending death concerning the cause or circumstances of what he believed to be his impending death.

But hearsay has two categories. There are one set of exceptions that are in play only when the declarant is unavailable to testify, and another that apply regardless of the declarant’s availability.

Ailes’ death opens up that first category.

Sometimes you can get around it - like TriPolar and AK84 said - as far as I’m aware you only can use dying declaration if somebody is dying AND they think they are dying. So that bob can’t shoot someone and the person in their dying breath says “It was bob”, and then claim “hearsay”. Well like the link probably say above - cause they think people are more likely to be honest.

Might seem arbitrary, but jurors are of course still allowed to take this into account and give it whatever weight they want - the exception just lets it in.

The law has a whole bunch of fascinating things like this. There are plenty of other exceptions. I don’t remember many off hand.

One has to do with family relationships (might be called something else), but if you think about it - the fact that Sarah is your sister is hearsay. How do you know she is your sister? Cause your parents told you.

Sometimes you will hear in court something like:

Lawyer: “So what did you do Next?”
Witness: “I called my mother and asked her where my dad was.”
Lawyer: “And based on your conversation, what did you do?”
Witness: “I went to the strip club to pick him up”

That’s one way to get around it. And like AK84 said, if not offered for the truth, you can say it. But I can’t remember a good example for that :frowning:

Also - keep in mind that if the opposing party doesn’t object - it won’t matter. Most attorneys won’t object to things that could easily otherwise be proven cause you are being a dick and they can do it to you.
ETA: missed Brickers post - didn’t know that part - so mine doesn’t really matter (not that it did anyway - just find these little rules interesting)

Declaration against interest? (For some reason, in the US, prior Testimony is part of the hearsay exceptions, everywhere else it’s admissible on its own merits)

The article mentions it briefly, but for those lawsuits in which Ailes was named as a co-defendant, his statements made to any witness and offered as evidence would not be considered hearsay (assuming no severance of defendants). The Federal and most states’ rules of evidence exempt statements made by a party opponent from being considered hearsay.

Irving Kanarek, the defense attorney for Charles Manson, was infamous for his obstructionist tactics, such as objecting whenever a witness was asked his or her name, on the grounds that the first time they heard their name was when their parents spoke it to them and was therefore hearsay.

At a criminal trial of Dad’s brother “Uncle Dave” for stabbing a stripper:

Prosecutor: After you picked up your father, what if anything did he say?
Witness: He said Uncle Dave stabbed the stripper.
Defense counsel: Objection, hearsay.
The Court: Sustained. The jury will disregard that last answer.

At a civil trial where another stripper is suing the club for failing to protect their dancers after a second unrelated injury:

Plaintiff’s counsel: After you picked up your father, what if anything did he say?
Witness: He said Uncle Dave stabbed the stripper.
Defense counsel: Objection, hearsay.
Plaintiff’s counsel: Not offered for the truth, your honor. This testimony is offered to show the jury that club management was aware that their dancers were in danger of attack from patrons.
The Court: Overruled.

I’ve always liked the idea of “excited utterances”.

“And what, if anything, happened next?”
"Dave said, "“Gaaaaaaaaaaah!” "
“Objection, heresay!”
“Excited utterances, your honor.”

As I understood, the “not offered for truth” does allow for example:
“The victim told you a year ago she was attacked the previous night?”
Me telling you that I was assaulted does not allow you to verify my assault - it’s hearsay.
But it does show that the version of events was established at the time, was not a much later concoction, say, to extort money from the defendant.

Intended to show the event was “on the record” long before the lawsuit, or firing, or whatever…

A fine example of the ancient dictum:When the facts are against you, argue the law.
When the law is against you, argue the facts.
When both are against you, just argue.Defending Manson was pretty much a legal Mission Impossible. Door number three was about all Kanarek had going for him.

Exactly. If it’s offered to rebut an accusation of recent fabrication, then it’s not hearsay.

I always liked this version:
If the facts are on your side, hammer away on the facts.
If the law is on your side, hammer away on the law.
If neither the facts nor the law are on your side, hammer away on the table.