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Wm. & Mary L. Rev.


In this Article, I draw on insights from the linguistic discipline of pragmatics to offer another way to understand and apply the definition of hearsay in the Federal Rules of Evidence. Pragmatics is concerned with how we use language in real-world contexts to accomplish various objectives.' By identifying the conventions that govern language usage, pragmatics provides ways to analyze what a speaker means when he says something and how meaning is conveyed through language.5 Pragmatics thus has obvious utility for the study of hearsay.

The philosopher Paul Grice looms over the field of pragmatics. His theory of conversational implicature revolutionized linguists' understanding of how we communicate.6 It is Grice's pragmatic theory of meaning, however, that has the greatest import for me. Meaning is an extraordinarily difficult concept. No single theory of meaning has been accepted for all purposes. I will argue, however, that the definition of hearsay in Federal Rule of Evidence 801 (Rule 801) requires an inquiry into what linguists call "speaker's meaning." I will then offer a formula for identifying hearsay based on Grice's theory of speaker's meaning. Finally, I will apply my approach both to basic situations and to a number of hearsay problem areas to demonstrate how it can facilitate the resolution of even the most intractable hearsay issues while effecting the rationale underlying the hearsay rule.