What is hearsay?
IF you’ve watched a courtroom drama, the chances are you’ll have heard a lawyer character shout “hearsay!” But what actually qualifies as “hearsay” in a legal context is more complicated than you might imagine. What is hearsay? In the courtroom, hearsay isn’t just gossip. According to LawShelf, the hearsay rule “prohibits witnesses from testifying as […]
IF you’ve watched a courtroom drama, the chances are you’ll have heard a lawyer character shout “hearsay!”
But what actually qualifies as “hearsay” in a legal context is more complicated than you might imagine.
What is hearsay?
In the courtroom, hearsay isn’t just gossip.
According to LawShelf, the hearsay rule “prohibits witnesses from testifying as to what other people told them to ensure that people testify only as to what they observed firsthand”.
According to Federal law, hearsay is “an out-of-court statement offered for the ‘truth of the matter asserted'”.
An out-of-court statement is something somebody told the witness.
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This could be face-to-face, on the phone, via voicemail, through text message, in a letter, on social media, or even through a head nod or other non-verbal communication.
That’s simple enough to understand, but the “truth of the matter asserted” part is where the hearsay law gets more tricky.
Hearsay is when someone testifies about something they didn’t personally witness, but heard from someone else.
You can only testify that something is accurate when you yourself have observed it.
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Why is the hearsay rule important?
Hearsay is important for ensuring that the cross-examination of witnesses remains effective.
According to LawShelf: “The hearsay rule is designed to protect the efficacy of cross-examination, which allows opposing parties to try to impeach witness’ testimony or draw testimony that might mitigate the value to the other parties.
“However, if the witness is testifying as to what someone else told him or her, cross-examination can be ineffective.”
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Let’s say for example you witnessed a blue Honda run a red light.
The opposing party’s lawyer might ask you questions during your cross-examination such as:
“Do you wear glasses or contacts?”
“Were you wearing your glasses or contacts that night?”
“Are you colorblind?”
“Did you get any of the license plate numbers on the blue Honda before you saw it run the red light?”
These are all questions that you could personally answer from experience, therefore no hearsay would occur.
However, if your friend Dave saw the car and told you he’d seen the car run the light, rather than you yourself, this would be hearsay.
What are some of the examples of exceptions to the hearsay rules?
A common misunderstanding about the hearsay rule is that anytime someone says something that they are repeating, it is hearsay.
This isn’t so, and there are exceptions to the rule against hearsay evidence.
The most common, according to FindLaw are:
- Present sense impressions
- A hearsay statement may be allowed if it explains or describes a condition or event and was made during the event or just after it
- An excited utterance
- This is closely related to the present sense impression and applies when there has been a startling event and the person made the statement while under the stress or excitement of the event
- Then-existing mental, emotional, or physical condition
- This is a statement that is offered not for the truth of the statement, but in order to show the state of mind, physical or emotional condition of a person. For example, testimony about a heated argument can be acceptable to show emotions, rather than what was said.
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There are also other categories of statements that will generally be seen as admissible, these are:
- Medical
- i.e. statements made to a medical provider for the purposes of treatment or diagnosis
- Documents
- Typically this includes business and government records, but can also include learned treatises, and family and church records
- Reputation
- These are statements concerning the person’s reputation, and that of their family or land boundaries.
However, it’s ultimately up to a judge what is or is not allowed in their court room.