WHAT IS HEARSAY?

I don't know if any of you have ever spent too much time listening to a hearing in court, but I'm sure most of you have definitely watched television movies with court scenes in them.  

 

In these scenes, during testimony, if one of the attorneys is not satisfied with a question, he or she will sometimes stand up and say "objection your honor, leading the witness", or "objection, your honor, speculation."  What does it mean when an attorney says, "Objection, your honor, hearsay." 

What is hearsay, actually?  

 

According to the Electric Law Library, hearsay is secondhand information that a witness heard from somebody else and did not hear or see it himself.  Generally, hearsay is inadmissible because it isn't trustworthy and because hearsay violates an individual's constitutional right to confront his accusers. 

 

According to Wikipedia, the constitutional right to confront your accuser is a clause of the sixth amendment to the United States constitution which provides that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him."  Further, "generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial."  

 

The fourteenth amendment makes this right available not only on the federal level but also in the individuals states.

 

So what does this mean in real terms?  Essentially, you are not allowed to say, "Jim told me that Sally admitted to killing Mr. Jones."  Why is that hearsay?  Because Jim is not there in the courtroom to talk about what he personally heard.  Witnesses are only allowed to talk about what they heard personally.  

 

The primary litmus test to determine whether a statement or document is hearsay has to do with the intention behind presenting that material. 

 

For example, if a witness makes a statement in trial court reporting on comments made by another person outside of the hearing in order to prove that those comments are true, then it is hearsay.  The reason is because the person who made those comments is not available for cross-examination. 

 

Furthermore, according to Electric Law, "Statements in the forms of letters, affidavits, declarations, diaries, memos, oral statements, notes, computer files, legal documents, purchase receipts and contracts all constitute hearsay when they are offered to prove that their contents are true."

 

However, if a witness comments on statements made by another party outside the courtroom, or if various kinds of documents are presented to the trial court for purposes other than to prove the truth of the comment or the contents of the documents, then they are all allowed.  

 

For instance, if they are simply offered to prove a person's state of mind, rather than the truth, then they are not considered hearsay.

 

Even with safeguards to preclude hearsay, there are so many exceptions to the rules that frequently hearsay is admitted nonetheless.  Overall, there are around thirty exceptions to the hearsay rule.  

 

Some common exceptions which allow hearsay testimony in are as follows: 

 

1.  Excited Utterances.  For example, if the person making the statement is still under the stress of experiencing the event.  For instance, if Sally had just murdered Mr. Jones fifteen minutes ago, was waving the weapon around yelling in Jim's hearing, "I just murdered Mr. Jones!";

 

2. Death Bed Confessions.  For example, if Sally, just before breathing her last breath stated to Jim, "I just murdered Mr. Jones!" and then died;

 

3.  Statements contrary to your own best interests.  This would include a situation where Sally said to Jim, "I know I may get the death sentence, but I just murdered Mr. Jones!";

 

4. Business records created in the ordinary course of business. 

 

5.  Public records, family records, records from ancient documents of established authenticity;

 

6.  Prior testimony, such as a copy of testimony from a previously held deposition where the opposing side was present. 

 

Why is it important to know what hearsay is? 

 

The only way that a litigant can prove his or her case is to present evidence to the trial court.  If there is evidence that will decisively prove your case, the opposing side will do whatever is possible to eliminate your evidence from the record.  One of the primary ways the opposing side can do that is to claim that your evidence is hearsay. 

 

Once you know what hearsay is you can get witnesses in to testify directly in regard to your evidence, or you can inform yourself in regard to the exceptions to the hearsay rule and get your evidence in through the methods provided by these exceptions.  By doing so, you can block the opposing side from ruining your case. 

 

At the same time, once you are informed regarding the rules about hearsay, you can prevent your opponent from slipping evidence into the record that has no business being there. 

 

If the proof is in the pudding, make sure you are the one who decides on the the ingredients used to make it.