June 13, 2022
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You’ve probably heard the word “hearsay” in connection to the January 6 committee hearings or other high profile court cases, but what is hearsay evidence? People often use hearsay to mean something like “secondhand information.” But in the courtroom, hearsay is a term of art with a specific legal meaning. It’s one of the most important rules of evidence. It’s also one of the most complicated.
HEARSAY: THE BASICS
Verbal and written statements are commonly offered at hearings and trials to prove facts at issue in a case. Courts are required to exclude certain statements from evidence when they were made by parties not present to testify at the trial or hearing. These statements are referred to as “hearsay.”
Hearsay is:
(1) a statement that the declarant (i.e. the person making the statement) does not make while testifying at the current trial or hearing and
(2) is offered to prove the truth of the matter asserted.
Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the truth of the matter asserted. For example, in a family law hearing, Henry wants to testify that his wife’s mother, Mrs. Smith, stated that she saw his wife, Wendy, hit their child. Since Mrs. Smith is not present during the hearing and Henry is testifying to what Mrs. Smith said, this testimony could be hearsay. If Henry is offering Mrs. Smith’s statement as proof that Wendy hit their child, then it is hearsay. Henry is not the proper person to testify about what Mrs. Smith said. Mrs. Smith must testify to what she observed.
There’s a few parts to this, so let’s take it piece by piece. First, it’s important to note that the type of statement that may be excluded as hearsay includes a person’s oral (verbal) assertion, written assertion, or nonverbal conduct that is intended as an assertion.
The second part just means statements made outside of court. We normally exclude hearsay because the declarant is not present to have their credibility assessed by the jury. In addition, the opposing party in the case does not have the ability to test the accuracy or validity of the statement by cross examination.
One nuance to the hearsay rule is that statements made by the opposing party in the current case are not hearsay. These statements are referred to as admissions and are admissible in court so long as the admission is being used against the opposing party. Thus, if Wendy ever admitted to hitting the child, Henry could introduce Wendy’s admission into evidence and use it as proof that she did, in fact, hit the child.
WHAT IS THE SIGNIFICANCE OF EVIDENCE BEING HEARSAY?
In general, hearsay evidence is admissible in court except when one party objects to the evidence. So, if one side tries to offer hearsay evidence, the other side can object and ask the judge not to allow the evidence. If the judge determines the evidence is hearsay, the judge will not allow that evidence to be admitted (unless there’s an exception, which is discussed below). If there is no objection to the evidence, the court will not act on its own to disallow it.
Proper objections to hearsay evidence can be the difference between winning and losing the case so it has significant importance. If somebody is making statements that are damaging to your case, you want to be able to cross-examine them to test the reliability of those statements and the trustworthiness of the person making them. You can’t do this unless that person is in court under oath. A lie can be debunked under cross-examination, but even an egregious lie is difficult to rebut with no opportunity to confront the liar. But sometimes, this isn’t as important.
EXCEPTIONS TO THE HEARSAY RULE
Hearsay is subject to numerous exceptions. That is, in certain situations, a statement may be admissible even if it is technically hearsay. Some exceptions apply only when the declarant is not available to testify as a witness. However, the first set of exceptions below operate regardless of whether the declarant is available. Thus, for any statement that meets the requirements of these exceptions, a witness may testify to the statement, even when that witness is not the declarant and the declarant can be brought to court.
(1) Present sense impressions are statements that explain an event or condition. These statements are made while the declarant immediately perceives the event or condition, or immediately after. For example, a witness may properly testify to being a passenger in a vehicle and hearing the driver say “I’m driving way too fast right now” because this statement was made while the driver was perceiving the driving.
(2) An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. A witness screaming, “Oh my gosh, that car ran a red light!” directly after observing a car accident, is an example of an excited utterance. However, if that same witness makes this same statement five days later, then the statement was not made under the stress of excitement from the accident and is not an exited utterance.
(3) A statement of then-existing mental, emotional, or physical condition expresses the declarant’s then-existing state of mind. The statement may express motive, intent, plan, emotion, sensory perception or physical condition. This exception does not apply to a statement expressing a memory or belief. Just like the present sense impression and excited utterance exceptions, a statement of then-existing mental, emotional or physical condition must be made close in time to the related event or condition. A statement such as, “I am scared,” expresses a state of mind. The statement, “I remember being scared when the dog approached me,” expresses a memory that, if testified to by someone other than the declarant, would not fall within this exception.
(4) The exception made for records of a regularly conducted activity is commonly referred to as the “business records exception.” This exception is used to admit written statements of an act, event, condition, opinion or diagnosis. The record must be made and kept as part of the regularly conducted activity of a business, or organization.
Police reports are another common example of a business record. However, a statement from a witness contained within a police report may not necessarily be admitted simply because the report itself qualifies as a business record. This presents the problem of ‘hearsay within hearsay’ where the hearsay document (the report) contains another layer of hearsay (a witness statement). To be admissible, each layer of hearsay will need to fall within an exception. For example, a witness may make a statement in a police report while still under the excitement of the event covered in the report. The police report can be admitted as a business record and the statement from the witness may be admitted as an excited utterance.
OTHER RULES OF EVIDENCE STILL APPLY
It’s important to remember that the hearsay rule is only one rule of evidence among many. Therefore, evidence can be admissible under the hearsay rule, but kept out under another rule. For example, evidence must be relevant to be admissible. So, an out of court statement that fits into a hearsay exception may nonetheless be inadmissible if it’s not relevant to the case.
In short, the hearsay rule is an important rule of evidence, but it is not the only rule of evidence. Determining whether a statement is hearsay is only one step in determining whether that statement is admissible in court.
WHAT THE HEARSAY RULE MEANS FOR YOU
The courts have developed the rules of evidence over hundreds of years, often with controversy, but always with a single goal: to have before the judge, jury or arbitrator evidence that is not pure statements of belief or opinion unless the person is an expert. While many laypersons are frustrated by the rules, there is little question that it allows the parties to proceed with their cases without fear that testimony that they cannot possibly question or attack is entered into evidence.
If one studies the transcript of trials in authoritarian regimes one quickly notes that the ability to cross examine witnesses is seldom allowed the accused. Such regimes recognize that the essence of effective defense is an objective trier of fact and the ability to present a vigorous and appropriate defense. Eliminate the ability to cross examine and you have gravely hampered effective representation.
The hearsay rule is thus central to the proper operation of truth seeking in the courts.
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