THE HEARSAY RULE--WHAT'S IT ALL ABOUT?

I can't say that I am entirely on top of all the rules regarding evidence.  I will readily admit that I'm still at the beginning of my journey when it comes to the subject.  However, at this point I have gathered sufficient confidence to comment on "The Hearsay Rule". 

The reason why this rule particularly interests me is because I have been shut up by this rule more than any other rule since I first arrived in court years ago. 

"Well, my mother said..."    INADMISSIBLE! 

"Well, my friend, Bob, told me that Joe..."  INADMISSIBLE! 

"Well, a bunch of my friends who were there said..."  INADMISSIBLE! 

How annoying is that?  Imagine having the Court shut you up every time you tried to give your testimony.  No, don't imagine it, just live it, once you try to go to Court without knowing what hearsay is. Trust me, you don't want to go there and embarass and humiliate yourself!

Apparently, Hearsay isn't allowed as evidence in the courtrooms of the United States of America.  So what is hearsay? 

Hearsay is a situation where the witness does not have direct experience of the fact or the truth he is stating, and only knows the information because someone else told him.

 

In other words, no gossip is allowed in the courtroom.  

According to Article VIII of the Federal Rules of Evidence, the definition of hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." 

In order to assertain whether a statement in court is hearsay, the Court can scrutinize the statement with the following three questions: 

1.  Has the statement been made under oath?;

2.  Was the statement made in front of the tribunal (judge or jury)?;

3. Was the statement subject to cross examination?  

Such a statement can be oral, written, or nonverbal. 

Going back to what my Mom said, was my Mom under oath? Did she make her comment in front of the Court, or was she there to be subjected to cross examination?  Guess not.  So what she had to say is not admissible in Court. 

The same goes for what Bob and that bunch of friends had to say!  Is Bob anywhere in the courtroom?  No?  Then to heck with what Bob had to say.  The Court won't listen to it because why?  Because its's hearsay, that's why!  This means that if you want information presented to the Court from your Mom, Bob and that bunch of friends, you are going to have to ask them to come to Court personally in order to testify as to what they said.   

Bottom line is that, most of the time, if a statement is being offered to prove that something is true, then the person making the statement has to come in and say it, otherwise the Court will absolutely not consider it. 

Why is the Court so strict about this?  Primarily, there is an understanding that we as human beings are generally unreliable regarding our perceptions.  Our memories are flawed and often in error. 

Also, there is the problem with the whisper down the lane element.  Do you guys remember playing whisper down the lane in Elementary School?  The teacher would whisper a comment into the ear of the first student.  Each student in the class would whisper the comment into the next student's ear until the last student.  Inevitably what the first student heard would be radically and outrageously different from what the last student heard. 

The exclusion of hearsay arises from the concern that something will happen similar to what occurs with the game whisper down the lane.  A statement could be misheard, or remembered improperly, and it could have gone through several mutations before ending up in the mouth of the witness in the courtroom. 

Are there any exceptions to the The Hearsay Rule, times when second hand information becomes admissible nonetheless?  Yes, there are about 30 exceptions.  See what I'm saying?  This is why I have avoided the subject so far.  Can you believe 30 exceptions?  You can't!  Well, I can't either, and don't expect me to list them all.  But here are a few: 

1) Excited Utterance:  This is when a person makes a statement right in the middle of a crisis, when he is still affected by it;

2.  Present sense impression:  A comment that a person made about conditions at the time the person made it.  You don't necessarily have to be in a crisis in this circumstance;

3.  Declarations of present state of mind:  If a person is describing his mental state as opposed to the physical conditions surrounding him or her;

4. Business Records Exception:  Business records created during the ordinary course of business are considered reliable and can be used as long as a proper foundation is laid for them when they are introduced as evidence.  You'd probably have to have someone familiar with the records available to answer questions. 

One exception I am particularly amused by is the one entitled "Forfeiture by wrongdoing".  That's when the person isn't available to provide first hand testimony because the accused killed him or rendered him unavailable in some manner, by threatening him, or breaking his kneecaps, etc.  You can always count on the Court to find a nice way of putting something like that! 

Sorting out the issue of hearsay is a little more complicated than this. But my intention here is just to give you a general idea so you can run with it.  Don't wait until you walk into a hearing to find out that your testimony is inadmissible, and then feel stupid.  Find out beforehand.  Get your witnesses in to back up what you say, or risk losing.