The next meeting with the Commission covered perhaps the most dreaded evidence rules: hearsay. As I mentioned in previous blog posts, it became evident from our discussions that a meeting solely focusing on hearsay would be extremely beneficial. A couple weeks ago we set up that meeting and I spent around 40 minutes explaining each of the hearsay exceptions cited in the Tibetan Evidence Code.
Hearsay is a concept that laypeople and legal professionals are equally aware of. It is a concept referred to casually by the general public but one that strikes dread in, I am sure, plenty of legal professionals. I think of hearsay and the accompanying exceptions like a cheat code for evidence admission. If you know the codes, the game of getting evidence admitted becomes easier and there is a heightened ability to admit more hearsay evidence. Without the codes, evidence admission seems daunting and nearly impossible to beat. The same is true of hearsay. If you know the definition and the exceptions, then your ability to admit hearsay evidence is nearly unlimited. The present hearsay rules are crafted in such a way that a lot of hearsay can be admitted, if one knows the exceptions and definition. I was excited to share this intricate rule with the Commission and witness their own revelations about the exceptions.
It was exhilarating to share the intricacies of the hearsay rules with the Commission. Their reactions and follow-up questions mirrored the ones I recall myself and my classmates having in evidence this past fall semester. Questions like: “wait so what exactly is an admission?” “does a medical diagnosis have to be made to a medical professional?” These questions stem, most likely, from a disbelief at how broad the exceptions are for hearsay. I know I went into law school with little actual knowledge about hearsay, but what I did know caused me to think that hearsay was entirely barred from evidence. So, it was jarring to learn the evidence rules for hearsay and realize that actually the exceptions have nearly swallowed the rule. This jarring realization was mirrored in the Commission as they listened to the exceptions and asked their follow-up questions.
As I went through the hearsay rules, I enjoyed sharing some of the rationales behind the various exceptions. For example, that the admissions exception is so broad because there is a belief that if you were foolish enough to say the statement when you are a party to a controversy then you are bound by it later in court.
While hearsay can be boring or confusing, throughout the meeting the Commission seemed engaged and asked lots of follow-up questions. Perhaps some of the engagement came from the amusing examples I thought of for the various rules. This meeting was once more one that I left energized and reminded me how much I love the way the hearsay rules work.