Hearsay

Hearsay in the United States

A statement by a witness repeating the words of another person rather than testifying on the basis of direct knowledge. Hearsay testimony is not based on what a witness sees, hears, or otherwise senses himself or herself. Rather, hearsay repeats what someone else saw or heard. If someone testified that “my supervisor told me that she saw John Doe leave work early,” that would be an example of hearsay. Hearsay is indirect evidence and, as a result, is generally inadmissible as a matter of evidentiary rule in courts. The reason for the hearsay rule is that such testimony cannot be subjected to such tests of truthfulness and reliability as cross-examination. [1]

For a meaning of it, read Hearsay in the Legal Dictionary here.

Analysis and Relevance

Hearsay is second-hand or indirect evidence. It is evidence from a witness based not on what the witness heard or saw personally. Rather, hearsay testimony merely repeats what a witness heard from someone else. Rules of evidence barring hearsay are designed to ensure that testimony coming before a court is reliable. Assertions that occur in open court and survive cross-examination by the opposing party are regarded as credible, and the hearsay rule protects this method of screening evidence. There are exceptions to the hearsay rule, but before a court allows hearsay, it must be convinced of both the reliability of hearsay testimony and the compelling need to use it. In some cases, for example, declarations of dying persons may be represented in court as truthfully uttered. Similarly, hearsay may be allowed when a defendant is charged with criminal conspiracy. Courts generally permit greater use of hearsay in civil actions. [2]

Practical Information

Written or oral evidence that seeks to establish the existence of a fact based not on the witness’ own personal knowledge or observation, but on what someone else said. Hearsay evidence is generally excluded at a trial because there is no opportunity for crossexamination (in U.S. law) of the declarant to lay bare whatever weakness there may be in the witness’ story. See dying declaration (in U.S. law). (Revised by Ann De Vries)

Evidence Law of Evidence in the U.S. Hearsay

Introduction to Hearsay

Hearsay evidence consists of statements made out of court by someone who is not present to testify under oath at a trial. Even if relevant, hearsay evidence generally is excluded unless some exception can be found. This rule is a distinctive characteristic of Anglo-American law and is virtually unknown in other legal systems. One reason for the exclusion of hearsay is the practice of cross-examination of witnesses in open court by opposing lawyers; written or oral assertions made by a person not present cannot be subjected to cross-examination.

Various exceptions are made, however, to the exclusion of hearsay evidence. Not everything that a witness “heard said” is considered hearsay, for sometimes the very speaking of words is important apart from their truth. For instance, the threat “Your money or your life” proves an intent to rob. Moreover, not all hearsay is excluded from consideration. The fact that an accused person has confessed guilt may support a conviction despite denials or silence at a trial. A confession is an admission by a person to the action in question-a classic hearsay exception. A confession is not admissible, however, when obtained by threats or promises of favor (see Confession).

The recognized exceptions usually invoke either or both of two principles: (1) The statement was made by a speaker who had reason to be truthful, and (2) the speaker is now unavailable to testify. The classic example is a “dying declaration” that may prove the cause of death of a speaker who knew that death was imminent, because the deceased had little reason to lie and cannot now testify. Other exceptions to the hearsay rule involve written evidence such as birth and death records.” [3]

Hearsay Definition in the context of the Federal Court System

Statements by a witness who did not see or hear the incident in question but heard about it second-hand from someone else. Hearsay is usually not admissible as direct evidence in court because it does not allow a defendant to confront his or her accusers and is not as reliable as first-hand testimony, but there are many exceptions to the hearsay rule.

Hearsay in Federal Practice and Procedure

This section provides comprehensive coverage of the main aspects of hearsay in relation to federal procedure, including an analysis of the rules as interpreted and applied by the federal courts and affected by related federal statutes and regulations.

Objection: Hearsay

Hearsay refers to out-of-court statements offered into evidence for their truth. The concept applied to verbal statements and to documents. It comes up whenever (1) a testifying witness is asked to testify about what he or she heard someone else say; (2) a testifying witness is asked to testify about a fact outside their personal knowledge about which he or she only knows because someone else said it; and (3) a party seeks admission of a document. The general rule is that out-of-court statements are not admissible. However, the exceptions to this concept are so vast that hearsay can be the subject of an entire law school course, and most lawyers do not become well versed in this area without substantial experience. A new trial lawyer should be prepared to object to hearsay evidence, and to argue with specificity as to why an out-of-court statement should or should not be admitted. Generally, an out-of court statement may be admitted for one of two reasons. One, it is not hearsay because it is not being offered for the truth of the matter asserted. Two, it is hearsay but meets one of the “hearsay exceptions”.

The policy behind the rule against hearsay is that out-of-court statements that were not made under oath or subject to cross examination are not reliable enough for court. [4]

Examples of Out-of-Court Statements Which are Not Hearsay

Statements Not Offered For Their Truth

Sometimes a party will offer a statement into evidence that is not offered for its truth. Another way to say this is that the statement is relevant regardless of whether it is true. For example, a police officer testifies that a robbery victim told him that the robber was wearing a brown shirt. If the prosecutor offers such a statement to establish the identity of the defendant as the robber because the defendant was indeed wearing a brown shirt, this is clearly hearsay. However, if the prosecutor offers the testimony to explain why the police officer initially excluded the defendant, who was wearing a red shirt, from consideration as a suspect, the statement is not being offered for the “truth of the matter” (that is, that the robber was wearing a brown shirt) but for its effect on the officer (that is, it explains why he initially overlooked the defendant as a suspect). Another example is where a police officer says that a witness to a crime said “all police officers are jerks”. If offered to prove that all police officers are indeed jerks, this is clearly hearsay. However, if the prosecutor offers the statement to show the state of mind of the witness (that is, he dislikes police officers, and therefore may have provided false information to police about the case), this is not hearsay.

Statements Offered for Impeachment

One breed of statement not offered for its truth is a statement offered for impeachment. For example, witness X testifies that the robber was seven feet tall (just like the defendant). On cross examination, he denies ever saying that the robber was five feet tall. In such a case, the defendant’s lawyer could call a witness who previously heard the first witness state that the robber was five feet tall. In such a situation, the statement is not being offered to prove that the robber was five feet tall, rather to attack the credibility of the witness. Obviously, this is a murky area. It is important for the lawyer to understand the difference between the legal avenue of admissibility (impeachment) and the real power of the evidence (that perhaps the robber was only five feet tall). Often, those two concepts are not only different, but opposed. (3) Admission of a party opponent – This confusing name applies, in a criminal case, to the concept that anything the defendant said to anyone is admissible as long as it is relevant. Some lawyers consider this a hearsay “exception”, but it is technically not considered an “exception” rather “non-hearsay”. Contrary to its name, it does not matter of the defendant’s out-of-court statement is an “admission” of any kind. Anything a defendant says to anyone is admissible as long as it is relevant.

If a statement is admitted as non-hearsay, the opposing party may request, and usually receive, a jury instruction informing the jury that the statement may not be considered for its truth, but only for its non-hearsay purpose. In judge trials or hearings, the judge must ignore the truth of the non-hearsay statement, and the statement cannot be considered as true for the appellate record.

Important Note – especially in jurisdictions outside the United States, the only limit to arguing that a statement is non-hearsay is the lawyer’s creativity. If it achieves a relevant purpose even if false, a statement may not be hearsay.

Hearsay Exceptions

Unlike with non-hearsay, statements admitted as an exception to the rule against hearsay may be considered for their truth. Hearsay exceptions are designed to further the policy that certain statements, though made out of court, not under oath, and not subject to cross-examination, are nevertheless reliable enough to be admitted. Some hearsay exceptions require that the person making the out-of-court statement be “unavailable” to testify. Others do not.

Exceptions where declarant is not unavailable

Here are some, but not all, hearsay exceptions that do not require the maker of the statement to be “unavailable”:

  • Excited Utterance: A statement made out of court that is made so close in time to a startling event that the maker of the statement would not have had time to reflect on the statement. Policy – People who have not had time to reflect after a startling event speak the truth. Only after reflection do people decide to lie.
  • Statement for Purposes of Medical Diagnosis: A statement made by a patient to a medical professional for purposes of a diagnosis. Policy – People generally tell the doctor the truth so as to get the correct treatment.
  • Business Record: A document kept in ordinary course of business attested to by the custodian of such record, and not made for the purposes of litigation. Policy – The maker of a business record has a business interest in its accuracy.

Exceptions where declarant must be unavailable

Here are some hearsay exceptions that do require that the maker of the statement be “unavailable”:

  • Prior testimony: Sworn, usually transcribed testimony previously given under oath and subject to cross examination by a party with similar (or identical) interest to the party against whom it is presently offered. Policy – Such testimony has been previously subjected to under-oath cross examination.
  • Statement Against Penal Interest: A statement made by a person that would have the tendency to subject the person to prosecution for a crime if made under circumstances where the person would have realized the statement could have such effect. Policy – people generally do not falsely say something that get them incarcerated.

Note: While many jurisdictions outside the United States may not recognize a strict prohibition against hearsay, the policy that un-cross examined statements should not be admitted for their truth could be argued in any particular case. Likewise, the policy behind “exceptions” to the hearsay rule, or other creative bases for why un-cross examined statements may still be reliable, could apply in many situations. [5]

See Common Objections at Trial here.

Resources

Notes and References

  1. Definition of Hearsay from the American Law Dictionary, 1991, California
  2. Id.
  3. Information about Hearsay in the Encarta Online Encyclopedia
  4. Defense Wiki
  5. Id.

See Also

  • Federal Civil Procedure
  • Federal Criminal Procedure
  • Federal Appellate Procedure
  • Cross- examination
  • Rules of evidence
  • Psychology
  • Evidence

Further Reading (Books)

Buck, Julie A., Amye R. Warren, and John C. Brigham. 2004. When Does Quality Count? Perceptions of Hearsay Testimony about Child Sexual Abuse Interviews. Law and Human Behavior 28 (6): 599-621.

Federal Rules of Evidence. 2005. Washington, DC: U.S. Government Printing Office. judiciary.house.gov/media/pdfs/printers/109th/evid2005.pdf.

Lamb, Michael E., et al. 2000. Accuracy of Investigators

Guide to Hearsay

In this Section

Evidence Law, Burden of Proof, Admissibility, Evidence Law Relevance, Hearsay, Witnesses and Evidence Privileges.

Hearsay: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Hearsay. This part provides references, in relation to Hearsay, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Hearsay by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Hearsay and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Hearsay or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Hearsay and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Hearsay. Finding these decisions can be challenging. In many cases, researchers about Hearsay should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Hearsay when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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