The hearsay doctrine may be one of the most known and least understood legal principles of all time. Hell, I went to the same law school that produced a 7-time Jeopardy champion and I still have to look up all of the hearsay exceptions.
This is all to say it was a very big deal in our household when self-proclaimed “Queen” Victoria told off Matt James on last week’s The Bachelor for crediting allegedly inadmissible hearsay evidence.
So, here was the situation: one contestant (Ryan) told Matt (the Bachelor) that Victoria (pure evil) had called her (Ryan) a ho. Because The Bachelor has a very strict—if murky and malevolent—sense of morality, Matt took this accusation to heart, using it as persuasive evidence to deny Victoria a rose. Then, as Victoria was making her long-overdue exit, she levied this accusation at Matt: “I honestly feel so sorry for you that you would listen to hearsay and not all of the facts behind a situation.”
But is that true? Did Matt actually listen to “hearsay” at all?
As Prof. Leah Litman explained, he most certainly did not. But the reason why this wasn’t hearsay is worth explaining in more detail here, in part because this is such an illustrative example of a difficult concept, and in part because I thought of this article before I saw Litman’s video.
Hearsay is (1) an out-of-court statement that is (2) offered in court to (3) prove the truth of the matter. But as simple as that sounds, things can get confusing real fast.
Let’s start with Ryan’s statement to Matt (telling him that Victoria had called her a ho). To be fair to Victoria, this does appear to meet the first two prongs of hearsay: Ryan was taking Victoria’s out-of-court statement (allegedly calling Ryan a ho) and offering it in court (or at least the Bachelor equivalent: a filmed conversation with Matt). But crucially, Ryan was not introducing the statement to prove the truth of the matter—she was not trying to prove whether or not she (Ryan) is a ho. Instead, Ryan is trying to prove something else altogether: likely, that Victoria is a scheming mean girl who is not to be trusted because she is the sort of person who would go around calling other girls in the house “ho’s.”
But it’s easy enough to picture a different situation where this sort of evidence would be hearsay. Let’s imagine that, in the case of In re Ryan, one important issue for Matt to decide is “whether Ryan is a ho.” And let’s say that Serena P. wants to testify that “I heard Victoria call Ryan a ho,” and this testimony will be used to support the claim that Ryan is, indeed, a ho. Now that would be hearsay: it’s an out-of-court statement (Victoria calling Ryan a ho) offered in court (ideally over champagne and ruined mascara) to prove the truth of the matter asserted (that Ryan is a ho).
As I mentioned above, however, there are nearly enough exceptions to the hearsay doctrine to make the rule itself a nullity. So, under the Bachelor Rules of Evidence, how could we introduce this statement to Matt in our case In re Ryan?
Present Sense Impression: Let’s say that Victoria walked in on Ryan and Matt sucking face, and Victoria immediately turned to the camera and said, “Oh. My. God. Ryan is such a ho.” Under Bach. R. Evid. 803(1), “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” is admissible. So Victoria’s present sense impression—her statement describing Victoria as being a total ho for kissing Matt, made immediately after she saw them sucking face—is admissible.
Excited Utterance: Similar to above, Victoria’s statement could also likely come in as an excited utterance under Bach. R. Evid. 803(2), which allows for “statement[s] relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Here, Victoria witnessed a startling incident (Ryan tongue wrestling with Matt) and, while Victoria was under the stress of the excitement that was caused by seeing the two of them go at it, she uttered: “Ryan is such a ho.” Boom! We just got this in as an excited utterance.
Statement for Medical Treatment: This one’s a little different. Let’s say that Victoria went to the house doctor to treat a case of VD. While describing possible causes, Victoria explains to her doctor that Ryan is a ho, and maybe that’s how the VD passed from Ryan to Matt to Victoria. Under Bach. R. Evid. 803(4), “[a] statement [such as Victoria’s] that: (A) is made for—and is reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause,” is admissible.
Recorded Recollection: Let’s say that Victoria is called to testify in In re Ryan. Only now, Victoria can’t quite remember how exactly she described Ryan at the time. But Victoria knows she made a video confession to a producer that documented her impression. Under Bach. R. Evid. 803(5), such a recorded recollection is admissible if it “(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.” That would likely be the case here, as (A) Victoria once told the cameraman about Ryan being a ho, but she now can’t remember exactly what she said, (B) Victoria made her video confessional while the sting of Ryan’s ho-ness was fresh in her mind, and (C) the video confession accurately reflected Victoria’s knowledge at the time.
Dying Declaration: Let’s imagine that Victoria was on the verge of death (maybe hypothetically because she caught COVID while storming the Capitol). As she lay dying at the ho-spital, perhaps Victoria uses her final breath to uptalk, “Before I leave this cruel world of fake bitches behind me, I want you to know: Ryan is a ho, and that’s the reason I’m dying—she li-ter-a-lly killed me with her ho-itude.” Under Bach. R. Evid. 804(b)(2) (commonly referred to as the “dying declaration” hearsay exception), “a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances” is admissible. Thus, Victoria’s statement about the cause of her death (Ryan’s ho-itude) could come in.
Murder: Last, consider what would happen if Ryan, to prevent Victoria from testifying that she once called Ryan a ho, murders Victoria. Not only would that probably preclude Ryan from later appearing on Bachelor in Paradise, but it would also likely cause Victoria’s statement to come in to evidence. Under Bach. R. Evid. 804(6), “[a] statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result” is admissible. So in this case, Chris Harrison would likely be allowed to read into the record Victoria’s statement (“Ryan is a ho”), since it would be poor public policy otherwise to allow Ryan to get away with murder in order to prevent Victoria from testifying to that effect. It should be noted, however, that this scenario could result in a possible Confrontation Clause issue under the Sixth Amendment. If, say, Ryan committed manslaughter by hitting Victoria too hard in the head during the annual Bachelor episode where they make the women box each other, but Ryan didn’t hit Victoria with the intention of making Victoria unavailable to testify, then this evidence couldn’t come in. Thanks, Scalia.
So there you have it. The Bachelor is so much more than a bizarre fusion of patriarchal hierarchy and champagne-drenched morality play. It’s also a useful reminder of just how confusing and difficult hearsay law can be.