Objection: Hearsay

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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.

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.

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.

See Common Objections at Trial