The term “hearsay” is one of those often heard but seldom understood by those who do not use evidence in their day to day professions. It does not mean questionable evidence. It does not even mean evidence you cannot use in court since quite often hearsay is allowed in a court of law. It is a specific term defining a particular type of evidence that may or may not be allowed into evidence based on the particular circumstances of how it was created.
Merriam-Webster has an excellent definition of what hearsay is: “…evidence based not on a witness's personal knowledge but on another's statement not made under oath.” In American courts, hearsay is often not allowed in as evidence to prove the truth of what is testified to. Another definition spells it out clearly:
Hearsay is an out-of-court statement offered to prove the truth of whatever it asserts. Hearsay evidence is often inadmissible at trial. However, many exclusions and exceptions exist. For something to be hearsay, it does not matter whether the statement was oral or written. Generally speaking, hearsay cannot be used as evidence at trial.
The reason hearsay is barred for evidence is simple: one cannot cross examine the person who is making the statement since that person is not in court. The person in court or the document read is simply repeating what someone else said…and that someone else is not present for cross examination.
An example makes it clear: Assume a key issue in the trial was whether someone drove through a red light. A witness saw the defendant drive through the red light and not stop. However, that witness is not in court…he told his friend, X, and X is called to testify as to what that witness said to prove our client went through the red light. How can I question whether he actually saw it, where he was standing, whether he had been drinking or knew the driver and had a grudge against him? He is not there: the only person I have to cross examine him is someone he may have talked to a day later while walking his dog. I am stymied from defending my client and examining the validity of the witness’ claims.
For that reason, the courts have usually barred such hearsay. However, there are many exceptions as to when hearsay can be used in most courts, and those are discussed in this article.
Hearsay: Verbal and Written:
It is important to understand that written documents can also be hearsay. If you try to put into evidence a document claiming X, but I cannot cross examine the person who created the document, then the very same issues involving an out of court “statement” described above are created. Thus, one can object to a document being introduced as constituting hearsay as much as verbal testimony being introduced.
Hearsay Not Meant to Prove the Contents of the Statement:
One can put an out of court statement into evidence if the purpose is not to prove the truth of the out of court statement but to prove what was heard or seen directly. That is not hearsay. An example: I need to show someone was angry to prove his intent to assault. A witness saw him swearing and claiming the victim was a thief and a liar and that he would show him what comes from that. Since the purpose of the evidence is not to prove whether or not the victim was a thief but to show the state of mind (anger) of the person making the statement, it would be admitted into evidence.
(Of course, this exception can lead to confusion in the mind of the jury and they may take the evidence to prove he is a thief: for that reason, the judge is to balance the probative versus the prejudicial value of the evidence and may bar it for that reason.)
Admission and Declarations Against Interest:
Courts at times allow admissions to be entered into evidence even if hearsay since the fact that the witness would say something that is against his or her own interest gives weight to the validity of the otherwise hearsay statement. An admission is a statement by a party to the litigation that is against his or her interest while a declaration against interest is a statement allegedly made by a nonparty witness.
Some courts require the admission or declaration against interest to be of specified types, such as pecuniary interest or admission of criminal conduct. The standards for entry of evidence of an admission versus a declaration against interest are less since the declarant is a party.
Examples: A witness states that the plaintiff admitted to him while having a drink that he was not really owed the debt claimed but had forged the signature. Even though the plaintiff is not on the stand, that would be admissible evidence since it was an admission of both a criminal act and against pecuniary interest. Or a nonparty admits to the current witness that he committed perjury against a party in the past and that may be admitted into evidence since it is a declaration against interest.
Another exception in some jurisdictions is what is said by a person who was dying and knew he or she was dying. The rationale of this admission into evidence is that a person is unlikely to lie if they know they are about to die and, presumably, face their Maker. This exception has been eliminated in some jurisdictions since the rationale has been questioned.
Documents Made in the Regular Course of Business:
Perhaps the most commonly used exception is the entry into evidence of documents that were routinely made in the regular course of business. This typically allows the entry into evidence of invoices and statement of accounts demonstrating sums due and owing from the defendant. The rationale is that every business keeps such records and could not long survive if the records were not accurately kept. The usual collection case uses this exception to the hearsay rule since otherwise the court would have to require the person who created each invoice and statement of account to be in court to testify to the truth of the document and in some cases, with documents dozens of years old and numbering in the thousands, it would be almost impossible to find the persons who did create the documents.
Note that the documents cannot be introduced into evidence without a witness testifying that they were created in the regular course of business and answering questions during cross examination as to methods to create the documents, to check their accuracy, etc.
And if there is a truly contested issue as to a document (a party claims they were made without checks and balances and has proof they are inaccurate) courts will often require witnesses who made the actual documents to appear to defend them.
Note that this exception applies to non-business records as well, such as records kept by public entities or records of events regularly kept in a non-business context.
Prior Inconsistent (or Consistent) Statements:
Impeachment of a witness by past statements, either under oath or not, or written statements of a witness that are inconsistent with current testimony are often allowed into evidence.
Statements About Mental or Physical State:
Past statements pertaining to internal condition (state of mind; amount of pain, etc.) are often allowed in simply because there would be little other evidence to demonstrate such subject information.
Spontaneous or Contemporaneous Statements:
Often the courts will allow in a statement made concurrent with an event, especially if spontaneous. An example: The driver of an auto exclaims as he steps out of the vehicle and sees the pedestrian injured, “I am so sorry. It was all my fault.” Not only is that an admission but was spontaneous.
Statements by Children or Victims of Elder Abuse:
In cases involving sex crimes or abuse or neglect cases as to children, hearsay by a child under the age of twelve (either direct or in a police report) who was a victim may be admitted in the discretion of the court.
Evidence Code Section 1380 also allows a hearsay exception for Penal Code Section 368 Elder abuse cases if the person making the statement was over sixty-five years, dependent and either dead or disabled at the time the evidence is needed in court.
An exception may be available for statements about the family history and relationships of the person making the statement. These include statements about someone else's family history, if they were made by a speaker who was a relative of that person or else otherwise was close enough to his/her family to have had accurate information.
Further, evidence of the general reputation in a community concerning an event that was of import to that community, and evidence of a person's general reputation or particular trait in his community may also be admissible.
A typical example is a reputation for violence or drinking to excess if that issue is vital in the trial to prove that the person committed assault or drove under the influence. This type of evidence is not viewed with favor by most judges who feel it is so prejudicial to a party that unless the evidence is overwhelming and of critical need in the trial it will be barred.
There are other less common exceptions to the hearsay rule and the Federal courts (and each state) have their own rules of evidence that apply to hearsay, but the above list is common to most.
The courts have developed the rules of evidence over a four-hundred-year period, often with controversy, but always with a single goal: to have before the judge, jury or arbitrator evidence that is not pure statements of belief or opinion unless the person is an expert. While many laypersons are frustrated by the rules, there is little question that it allows the parties to proceed with their cases without fear that testimony that they cannot possibly question or attack is entered into evidence.
If one studies the transcript of trials in authoritarian regimes one quickly notes that the ability to cross examine witnesses is seldom allowed the accused. Such regimes recognize that the essence of effective defense is an objective trier of fact and the ability to present a vigorous and appropriate defense. Eliminate the ability to cross examine and you have gravely hampered effective representation.
The Hearsay Rule is thus central to the proper operation of truth seeking in the courts.