What Is Hearsay?

 

Most people think, and they are right, that hearsay is not allowed in court.  Most people also have an idea about what hearsay is.  These ideas are usually wrong.  Generally, people seem to believe that if June tells Steve something, Steve cannot repeat it in court because that would be hearsay.  This idea even has a kind of linguistic plausibility.  He hears her, then he says it – Hearsay.  However, this is not, legally speaking, what hearsay is.  A statement is hearsay if it is a statement that is “not ma[d]e while testifying at the current trial or hearing” and is “offer[ed] in evidence to prove the truth of the matter asserted in the statement.”  That definition is hard to grasp and some explanation is in order.

Out of Court Statements

The first bit, about a statement “not made while testifying at the current trial or hearing,” sometimes called an “out of court statement,” means anything that someone said, communicated, or even wrote, outside the current court proceeding.  And, “offered in evidence to prove the truth of the matter asserted” means that the person who is attempting to repeat the statement wants to repeat it to show that what was said was true.  An example illustrates this well.

Suppose June tells Steve that George was arrested and Steve tries to testify about what June told him.  If he is saying what June told him to show that George actually was arrested, then it is hearsay and cannot be allowed into evidence.  If, on the other hand, Steve is saying what June told him to explain why he got upset when he was on the phone with June, then it is not hearsay.  That is, Steve would be saying that June told him that George was arrested not in order to show that George was, in fact, arrested, but instead to show that Steve was very upset when he heard that George had been arrested.  The reason this example is not hearsay is because it actually does not matter whether George was really arrested – June could be wrong or lying.  The important part is that Steve heard from June that George was arrested and because he heard that (and rightly or wrongly believed it), he became upset.

Why is What is Known, Known?

The common sense justification for this somewhat puzzling legal distinction is the answer to this question: Why do the people in the example know what they know?  Steve cannot testify that June said George was arrested in order to establish that George was arrested because Steve does not personally know that George was arrested.  He was not there to see it.  In addition, if Steve were to be cross examined, he could not provide the jury with much guidance as to whether or not George really was arrested because he does not know how June knows that George was arrested.  In contrast, Steve definitely does know, probably better than anyone, that he heard June say that George was arrested and that hearing that made him upset.  If he were to be cross-examined about that, he could explain when he heard June say it, what exactly she said, in what context she said it, and why it made him upset.

There are, depending on how you count, around thirty enumerated exceptions to the rule that hearsay is not to be admitted into evidence.  Some important applications of these will be addressed in the next few posts.  But having a good grasp of what hearsay is will allow you to understand most of the times when a court decides not to allow some testimony to be given.

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