QUESTION: What legal analysis should the court apply when asked to rule on the admissibility of an out-of-court statement?
ANSWER: If you have ever read “Alice in Wonderland” you would be wise to follow the King’s advice to the white rabbit and always “begin at the beginning.” In other words, when asked to rule on the admissibility of an out-of-court statement, instead of assuming the statement is hearsay and skipping directly to the hearsay exceptions (which is what most of us do), it is usually best to take a step back, go to the beginning and ask the threshold question: is this out-of-court statement really hearsay? The answer isn’t always clear. Many statements that initially appear to be hearsay, on closer examination, actually are not. In order to make that determination I suggest you apply the following FOOL-PROOF HEARSAY TEST.
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