Of all the legal terms thrown around in courtroom dramas, "hearsay" is one of the most common and most misunderstood. It's often depicted as a lawyer leaping to their feet to object, but the reason behind the objection is fundamental to the American justice system. At its core, the rule against hearsay is designed to ensure that evidence presented in court is reliable, credible, and can be tested for its truthfulness.

What is Hearsay?

Hearsay is formally defined as a statement that was made outside of the current trial or hearing, which is then offered in court to prove that the content of the statement is true. To be considered hearsay, a piece of testimony must meet two key criteria:

1. It must be an "out-of-court statement." This includes any assertion—whether spoken, written, or even non-verbal (like a nod or a gesture)—made by a person (the "declarant") who is not testifying at that exact moment.

2. It must be offered to prove "the truth of the matter asserted." This is the crucial element. The purpose of introducing the statement must be to convince the judge or jury that what the statement says is factually correct.

For example, if a witness testifies, "My neighbor, Jane, told me she saw a blue car speeding away," that testimony is hearsay if it's being used to prove that the car was, in fact, blue and speeding. However, if the testimony is offered for a different reason—such as to explain why the witness then went looking for a blue car—it would not be considered hearsay.

Why Is Hearsay Generally Inadmissible?

The primary reason courts prohibit hearsay is because it is considered inherently unreliable. The American justice system is built on the principle that evidence should be subject to scrutiny. When a witness repeats what someone else said, several critical safeguards for ensuring truthfulness are lost:

● The Declarant Was Not Under Oath: The person who originally made the statement was not under oath, a solemn promise to tell the truth that carries the penalty of perjury.

● The Declarant Cannot Be Cross-Examined: This is the most significant issue. The Sixth Amendment's Confrontation Clause guarantees a criminal defendant the right to confront and cross-examine the witnesses against them. Cross-examination is a vital tool for testing a witness's sincerity, memory, perception, and potential biases. If a witness is merely repeating what Jane said, the opposing lawyer cannot question Jane to find out if her view was obstructed, if she remembers the event clearly, or if she has a reason to lie.

● The Jury Cannot Observe the Declarant's Demeanor: A jury assesses a witness's credibility not just by their words, but by their confidence, body language, and overall demeanor. With hearsay, the jury cannot see the person who actually made the statement to judge for themselves whether that person seems trustworthy.

The Codified Exceptions to the Rule

While the ban on hearsay is strong, the law recognizes that some out-of-court statements are made under circumstances that make them inherently reliable. For this reason, legal codes, including the Federal Rules of Evidence, contain a number of specific, codified exceptions that allow certain types of hearsay to be admitted. Some of the most common exceptions include:

● Excited Utterance: A statement made during or immediately following a startling event. The theory is that a person in such a state of excitement has no time to fabricate a lie. For example, a 911 call made moments after witnessing a crime.

● Statements Against Interest: A statement that a reasonable person would only have made if they believed it to be true because it was damaging to their own financial or legal interests.

● Statements for Medical Diagnosis or Treatment: Statements made to a medical professional are generally considered reliable because a patient has a powerful incentive to be truthful to receive proper care.

● Business and Public Records: Documents created and kept in the regular course of business, such as invoices, hospital records, or official government reports, are often admissible because organizations rely on their accuracy for their day-to-day operations.

Ultimately, the hearsay rule and its exceptions represent a careful balancing act. The goal is to filter out unreliable gossip and second-hand accounts while still allowing for the admission of evidence that, despite being hearsay, carries strong indicators of trustworthiness.

Author: Brian J. Boeheim, Partner

Brought to you by: Boeheim Freeman Law, Tulsa Oklahoma, 918-884-7791, onyourworstday.com