hearsay
Hearsay in email
<p>An email sent to me is represented as the opinion of the organization's attorney.  The complete original context is not known as it seems to be cut and paste (email metadata of who sent and when is absent)  </p>

<p>Is the forwarded opinion excerpt 'hearsay'?</p>

<p>Had the original complete attorney message (with email metadata) been forwarded: would it be hearsay?   I understad that a forwarded message is not necessarily authentic (message may have been modified). </p>

<p>Assume US jurisdiction</p>

<p>"Hearsay" is a term used for statements offered in evidence in court that are not admissible because the person who originally made the statement has not testified to it. The hearsay rule is complex, and has many ramifications and exceptions. Legal texts take hundreds of pages to explain all these complications. </p>

<p>But the term is not appropriate unless the statement is offered as evidence in court, or there is a plan to offer it. An ordinary email that no one plans to offer in court is neither hearsay nor not-hearsay, it is just a set of statements that may be true or untrue, accurate or mistaken.</p>

<p>If for some reason this email were to be placed in evidence in court, the default procedure would be to call the person who originally wrote it to testify, and ask questions like "Did you write this? When did you write it? was it the truth to the best of your knowledge when you sent it?" If the original sender cannot or will not be a witness, then whether the email will be accepted as evidence will depend on what is sought to be proved by the email, and what evidence there is that the email was sent, and by whom, and was the truth as far as the sender knew.</p>

<p>If what you really want to know is whether the email accurately quotes the organization's lawyer, just email or write that lawyer, saying something like "Does the attached email accurately represent an opinion that you gave to {organization} as I have been told it does?"</p>

<p><strong>Is it hearsay?</strong><br>
Hearsay is: (1) a statement; (2) made outside of court; (3) offered as evidence; (4) that the out-of-court statement is true. But statements made by the adverse party in the legal proceeding are not hearsay. See <a href="https://www.law.cornell.edu/rules/fre/rule_801" rel="nofollow noreferrer">Federal Rules of Evidence, Rule 801.</a>*</p>

<p>In this case, we have a double-hearsay problem, because you have the lawyer making a statement, and then someone forwarding it to you, essentially making a statment that the lawyer made a statement. So presented as evidence, you'd be saying, "X said that Y made statement Z."</p>

<p>So to see if that's hearsay, you run the hearsay analysis on both statements, asking the court to accept both that the forwarding party sent the forward, and that the lawyer said the things in the original e-mail.**</p>

<p><strong>Statement 1:</strong> The forward is an out-of-court statement that the lawyer said the things in the forwarded message, and you're trying to prove that the lawyer said the things in the forwarded message, so that probably puts you in the hearsay category. The question becomes who forwarded it to you. If the organization forwarded you the e-mail, then it's not hearsay.*** If it's from the lawyer's brother, then it's probably hearsay.</p>

<p><strong>Statement 2:</strong> The original e-mail is an out-of-court statement that the lawyer holds a certain opinion. If you offer it as evidence, the hearsay determination turns first on what you're trying to prove. If you're trying to prove that the lawyer held the opinion that he laid out in the letter, then we have to ask whether the lawyer made the statement on behalf of an adverse party in the litigation. If the answer to either of those is "no," then it's probably not hearsay.</p>

<p>On the first question, for instance, if you're trying to prove something other than what opinion the lawyer had, it wouldn't be hearsay. Imagine the following e-mail:</p>

<blockquote>
  <p>You've asked for an assessment of The Organization's liability under the Widget Control Act in light of our bad fourth-quarter financial reports. The Act imposes a $100-a-day penalty on organizations that fail to include suitable safety devices on their widgets. The law went into effect on August 20, and we still don't have safety devices, so we could currently be held liable for $400, with that amount increasing every day. But the Statewide Widget Control Authority isn't up and running yet, and our widgets aren't likely to injure anyone, so you may want to take that into consideration when deciding how aggressively we want to pursue compliance. Similar circumstances allowed us to slow-walk our implementation on previous compliance programs.</p>
</blockquote>

<p>If you wanted to prove that the lawyer believed the company was liable for $400, that would not usually work. But if you wanted to prove something else -- that the company knew about the Widget Control Act, that the company knew it didn't have safety devices on its widgets, that the company knew it was required to install them, that it had a profit motive for noncompliance, that it has a pattern of engaging in this behavior -- you could do that without having a hearsay problem.</p>

<p>On the second question, it matters whether the lawyer is speaking as an employee or attorney for the organization. If so, the connection is close enough that you'd be able to offer it without it being hearsay. But if he just sent that e-mail to a friend who forwarded it to you, then the connection is severed, and it may be excluded as hearsay.</p>

<p><strong>Is it admissible?</strong><br>
Determining whether a statement is hearsay is only a first step. Being hearsay is not the same as being inadmissible, and not being hearsay is not the same as being admissible.</p>

<p>Even if the statement is hearsay, there's a long list of exceptions to the rule against hearsay. If a hearsay statement falls into one of them -- excited utterance, dying declaration, then-existing mental state, etc. -- then it may be admitted just the same. See <a href="https://www.law.cornell.edu/rules/fre/rule_803" rel="nofollow noreferrer">Rule 803</a> and <a href="https://www.law.cornell.edu/rules/fre/rule_804" rel="nofollow noreferrer">Rule 804</a> for a full list.</p>

<p>And if the statement is not hearsay, it could still be excluded for a long list of reasons. Based on what you've provided, I can imagine valid objections for a variety of reasons, including:</p>

<ul>
<li><p>The evidence is protected by attorney-client privilege;</p></li>
<li><p>The evidence is protected work product;</p></li>
<li><p>The evidence is not relevant;</p></li>
<li><p>The evidence is substantially more prejuicial than probative;</p></li>
<li><p>The attorney is not qualified to offer an expert opinion;</p></li>
<li><p>The evidence has not been sufficiently authenticated;</p></li>
</ul>

<p>*This analysis applies the Federal Rules of Evidence. Most state courts use basically the same rules.<br>
**It may be that there were other people forwarding the e-mail between X and Y, so you'd have to run the same analysis for all of them.<br>
***I'm assuming that you're speaking of a scenario in which the organization is an opposing party in litigation.</p>

<h2>Hearsay</h2>

<p>A lot more stuff is hearsay than most people think. In <a href="/questions/tagged/new-south-wales" class="post-tag" title="show questions tagged &#39;new-south-wales&#39;" rel="tag">new-south-wales</a>, hearsay is defined in <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/s59.html" rel="nofollow noreferrer">s59</a> of the Evidence Act 1995:</p>

<blockquote>
  <p>(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.</p>
</blockquote>

<p>So, that’s perfectly clear, right?</p>

<p>Wharton’s if I put it this way instead: evidence that I said something is evidence that I said it, it is not evidence that what I said was true (or false) or that I believed it was true (or false) or that what I said has any truth value whatsoever. In fact, unless the mere fact that I said <em>something</em> is in itself relevant on its own the whole thing is inadmissible.</p>

<p>The Act helpfully gives some examples:</p>

<blockquote>
  <ol>
  <li><p>D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.</p></li>
  <li><p>P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.</p></li>
  <li><p>W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.</p></li>
  </ol>
</blockquote>

<p>So is this email hearsay? Absolutely, unless the sender can testify to it. Is the email is supposedly quotes hearsay? Doubly so, because in addition to the sender of the quoting email, you need the testimony of the original author.</p>

<p>These people would need to be subpoenaed and testify. Unless they were dead, or beyond jurisdiction. Hearsay is tough.</p>

<h2>Exceptions</h2>

<p>There are a bunch of exceptions:</p>

<blockquote>
  <p>Specific exceptions to the hearsay rule are as follows:</p>
  
  <ul>
  <li><p>evidence relevant for a non-hearsay purpose (section 60),</p></li>
  <li><p>first-hand hearsay:
  -- civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64)
  -- criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66)</p></li>
  <li><p>contemporaneous statements about a person's health etc (section 66A)</p></li>
  <li><p>business records (section 69)</p></li>
  <li><p>tags and labels (section 70)</p></li>
  <li><p>electronic communications (section 71)</p></li>
  <li><p>Aboriginal and Torres Strait Islander traditional laws and customs (section 72)</p></li>
  <li><p>marriage, family history or family relationships (section 73)</p></li>
  <li><p>public or general rights (section 74)</p></li>
  <li><p>use of evidence in interlocutory proceedings (section 75)</p></li>
  <li><p>admissions (section 81)</p></li>
  <li><p>representations about employment or authority (section 87 (2))</p></li>
  <li><p>exceptions to the rule excluding evidence of judgments and convictions (section 92 (3))</p></li>
  <li><p>character of and expert opinion about accused persons (sections 110 and 111).</p></li>
  </ul>
  
  <p>Other provisions of this Act, or of other laws, may operate as further exceptions. </p>
</blockquote>

<p>None of these obviously apply.</p>
