Fri 10 Feb, 2023 Criminal Defense

What is Hearsay?

Hearsay is a legal term that is often used by lawyers and non-lawyers in various contexts, but many people (even lawyers!) don’t actually know the definition of hearsay. Hearsay is an important concept in law because statements that are hearsay are oftentimes not admissible at trial.

So, what exactly is hearsay? The precise answer is: Hearsay is an out-of-court statement used for the truth of the matter asserted. Although that may sound complicated, it’s easy to understand if you break it down.

First, hearsay must be a statement that is made outside of a court proceeding. If someone testifies on the witness stand about what he or she saw happened, then that testimony is not hearsay. Some people mistakenly think that a statement is hearsay if it is made by a witness without corroborating proof. That is not the case. Of course, corroborating evidence is always useful, as it helps verify that a witness is truthful and accurate when he or she testifies about something, but a witness’ word alone, so long as it is made under oath on the witness stand, is not hearsay.

Second, for a statement to be hearsay, it must be used for the truth of the matter asserted. Although that sounds complicated, it is fairly simple once you understand the meaning of that phrase. “Used for the truth of the matter asserted” means that the statement is being offered to establish the very fact that the statement asserts. 

Here is an example to help show what it means for a statement to be “used for the truth of the matter asserted”: 

Let’s say that, in a domestic violence trial, a police officer takes the witness stand and says that on the day of the fight, the victim told him that the defendant punched him, and the prosecution is using that argument to establish that the defendant is the person who punched the victim. In this case, the victim’s statement that the defendant punched her is an out-of-court statement since the police officer is testifying about what the victim told him on the day of the incident, out of court. Further, the statement is also being used to establish the truth of the matter asserted. In other words, the victim’s statement that the defendant punched her is being used to establish exactly that—the defendant punched the victim. Therefore, this statement would be hearsay and would typically not be admissible in evidence at trial.

When a statement is hearsay, then it is typically not admissible at trial, meaning that the statement will not be heard by the jury. The reason that hearsay is not allowed at trial is that, over hundreds of years, courts have held that out-of-court statements are not as trustworthy as in-court statements because the person making an out-of-court statement is not under oath, and the opposing party does not have the opportunity to cross-examine that person to poke and prod the trustworthiness and accuracy of that person’s statement.

Although hearsay is not admissible at trial, there are exceptions. These exceptions allow out-of-court statements used for the truth of the matter asserted to be used at trial, despite being hearsay.

Exceptions to the Rule Against Hearsay

Many exceptions to the rule against hearsay exist, but here are a few of the very common ones:

Business Records

A very common exception to the rule against hearsay is when the hearsay is a business record. Some common requirements for a business record to be admissible are that it is the normal course of business for the business in question to create such records, that the document in question was, in fact, made in the normal course of business, and the record was created close in time to the events that the record describes.

Business records are considered to be reliable and therefore are one of the categories of out-of-court statements that are still admissible at trial. However, if a business creates a record to prepare for litigation, then that will not be admissible.

Excited Utterance

Another very common hearsay exception is when a statement is an “excited utterance.” An excited utterance occurs when a person is startled or in shock when he or she makes the out-of-court statement. 

The rationale for admitted excited utterances, even though they may be out-of-court statements used for the truth of the matter asserted, is that such excited utterances are believed to be reliable because the person making the statement was so excited or in shock that he or she did not have time to reflect or connive to lie. Some scholars believe that the excited utterance exception to the rule against hearsay is misguided, as people can quickly lie or be mistaken about facts, even if they are excited or in shock. However, until the legal system undergoes a fundamental change, the excited utterance exception will likely still exist.

Present Sense Impression

Another typical hearsay exception is when a statement is a present sense impression, which occurs when the person making the statement is describing what he or she is observing. For instance, in a DUI case, if a person calls 911 while driving on the highway to describe the make, model, and license plate number of a vehicle he sees that is veering across lanes, that statement would be a present sense impression. 

Hearsay statements that are present sense impressions are admissible because courts believe that people are accurate and honest when they are describing something immediately in front of them. Whether that is true or not, the exception for present sense impressions is widely accepted, and therefore such statements will be admissible at trial.

Statement Made for Medical Diagnosis

When a person is making statements for medical treatment or diagnosis, such statements will be admissible at trial even if they are hearsay.

For instance, if a person tells a paramedic that he was shot with a gun two times in the arm, that statement—which is relevant for medical treatment and diagnosis—will be admissible, even though it is an out-of-court statement that would be used for the truth of the matter asserted.

On the other hand, if the person said that he was shot two times in the arm by a man wearing a purple jumpsuit, the portion of his statement about being shot twice in the arm would be admissible, but the portion about the man in the purple jumpsuit would not be admissible, because the color of the perpetrator’s jumpsuit is not relevant for medical treatment or diagnosis. 

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