Updated: Aug 11, 2022
In the game of telephone, a group of people line up or form a circle. The person who starts the game will whisper a phrase to the person next to them. The next person does the same thing until it gets to the last person. The last person then recites the last thing they were told. Because the phrase passes through multiple people and is recited by memory, what the last person says is usually different from the first person. The goal of the game is for the last person to match the phrase with what the first person said, but this doesn’t happen very often.
Now imagine you are in a court of law and you have been accused of committing a crime. Included in the evidence presented against you is a witness statement of what they were told by somebody else. In other words, the telephone game is being played in a trial against you and the evidence used against you isn’t solid. It could be potentially unreliable and maybe not even true. This is hearsay.
The legal definition of hearsay is “an out-of-court statement offered to prove the truth of whatever it asserts.” Hearsay is when a witness quotes a statement from someone outside of the court. Hearsay is generally not admissible in court. Even written statements can be thrown out of a trial based on hearsay.
Hearsay is a very common basis for objecting in any litigation matter. In the high-profile defamation lawsuit between Johnny Depp and Amber Heard, witness testimony was regularly interjected with the phrase “Objection, hearsay.” Amber’s attorneys objected so frequently (and at times so foolishly) to Johnny’s testimony that they went viral all over the internet. Common as it may be, hearsay can be very complex and not always fully understood.
An example of hearsay would be saying “He told me he saw those guys rob the bank” rather than saying “I saw those guys rob the bank.” Hearsay can be deemed inadmissible because it is unreliable and there is no guarantee as to its accuracy. And because it is unreliable, it would be unfair to have a witness testify about something that somebody else said.
A witness is permitted to testify about their own experience. They are allowed to speak about what they saw, what they felt, or what they experienced. A witness may be able to testify that he heard gunshots, but he couldn’t say his neighbor saw a man in a blue shirt running away. A witness may also be able to say that she could smell smoke and see people running out of a burning building, but she couldn’t say that somebody told her they could smell smoke two blocks away.
As mentioned before, hearsay may also be presented in writing or other types of documents. If the author of the document makes a claim, but cannot provide testimony in court, the same problems created by an out-of-court verbal statement are introduced: evidence is brought into trial without a reliable way to prove the truth of the document.
Some documents permitted may include documents that have been made in the regular course of business such as invoices or a statement of accounts showing debts owed. Such documents still require that a witness testifies the documents were created in the regular course of business to be admitted as evidence. The witness may also be required to answer questions in cross-examination regarding the creation of the documents to prove their accuracy.
Hearsay, however, can be much more complicated than simply proving the accuracy of the document. Police reports, for example, can be admitted or excluded depending on the context behind the document and what is contained in the report. Because police reports are made due to a department or government policy. Under that standard, they qualify as a document created in the regular course of business. However, a police report may become hearsay under certain conditions. If an officer is unable to testify in court, their report could arguably be made inadmissible. Many police reports also contain witness statements, and if a witness is unable to testify, their statements in the report may end up being redacted.
Exceptions to Hearsay
What makes hearsay so complicated is the wide range of exceptions. Within these exceptions are also varying ways to interpret and exploit them.
Under Rule 804 of the Federal Rules of Evidence is a list of hearsay exceptions. These may be admissible in court under witness testimony. Rules of evidence for most states don’t vary too much from the federal rules. Below is a list of exceptions under Rule 804:
Former testimony includes testimony that was previously given at a trial, hearing, or lawful deposition. This can be any statement that the witness made under oath.
Statement Under the Belief of Imminent Death
This statement may also be considered an “utterance of excitement.” For example, if a person is running out of a burning building screaming that their hair is on fire, this may be considered a statement under the belief of imminent death and is admissible in court. This is complicated because the degree to which a person is excited can vary. It has been difficult to determine the extent of excitement a person must reach before it becomes a hearsay exception. The belief of imminent death could also be taken as a vague term. People erroneously assume their death is imminent all the time. Last year, a video went viral all over social media of a kid who exclaimed that he was dying because he was stung by a wasp. Update: he is alive and well. In all the excitement of a stressful situation combined with the rush of adrenaline, it can become very easy to distort one’s perceptions into witnessing something beyond reality. This can lead to undesirable results in witness testimony. This makes statements under the belief of imminent death.
The reason why these statements are generally admissible in court is that the dying declaration of a person is presumed to be trustworthy and reliable. If a person is on their deathbed they have little to no reason to purposefully make misleading or unreliable statements.
Statement Against Interest
This statement is one that any reasonable person in the witness’s position would have made that was so contrary to their interests that it would invalidate their claim or expose civil or criminal liability. For example, if a driver involved in an automobile accident begins openly boasting that they were racing another driver, this would be a statement against interest. Another example would be a person stating that they didn’t declare all of their income on their tax returns. Declarations against interest are usually incriminating, embarrassing, or would significantly harm one’s reputation in some way or another.
Statement of Personal or Family History
This sort of statement may concern “the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact.” It may also concern another person related “by blood, adoption, or marriage, or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.”
Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability
This is more a principle of fairness rather than a hearsay exception. If a witness was made unavailable by the opposing party by coercing them through bribery, intimidation, or murder, their statements are then admissible in court and not considered hearsay.
Statement of Identification
A statement of identification could be anything a witness said to describe or identify an individual in the case. This applies where the witness previously identified somebody but cannot remember the identification in trial or identifying characteristics changed in some drastic way (the person shaved their beard and dyed their hair). Prior identifications are more reliable because they are closer to when the incident in question took place.
A witness’s prior statement is not hearsay.
If a witness’s prior statement is inconsistent with the current testimony being provided, this is not considered hearsay. A prior statement may be any statement made out of court, in court, or any other capacity under oath. If the current testimony of a witness is inconsistent with previous testimony, this may be used to determine the truth of a current statement being made. If somebody previously admitted to the possession of fentanyl and later said in court that it belonged to somebody else, that previous statement is admissible to establish the truth to whom the drugs belonged.
An opposing party’s statement is not hearsay.
The statements of an opposing party are not considered hearsay because any statement, claim, or admission by the opposing party (or parties) is often a significant element in proving or defending a case. The plaintiff is allowed to introduce all statements made by the defense as evidence and vice versa. The surrounding circumstances required to exempt an opposing party statement from hearsay are as follows:
The statement was made by the party in an individual or representative capacity.
The statement is one the party manifested that it adopted or believe to be true.
The statement was made by a person whom the party authorized to make a statement on the subject.
The statement was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.
The statement was made by the party’s coconspirator during and in furtherance of the conspiracy.
It is also stated in Rule 807 that a statement may be admissible “if the proponent gives an adverse party reasonable notice of the intent to offer the statement - including its substance and the declarant’s name - so that the party has a fair opportunity to meet it.”
The reason why these exceptions are exceptions is that there is sufficient context behind such statements to confirm their truthfulness. The whole purpose of hearsay is to ensure that the truth of the matter is revealed. Potentially unreliable evidence with no way to confirm its accuracy is a threat to uncovering the truth in a case. In many scenarios, it could change the direction of the case completely. These exceptions don’t threaten the revelation of truth in a case.
Hearsay Doesn’t Mean False
It is important to note that because a statement or document is hearsay, that does not mean that it is false. It only means that it could be false. Evidence that has been made inadmissible in court based on hearsay is because its truth or falsity cannot be confirmed. When it comes to hearsay, the goal of any litigator should be to not allow evidence that is not 100% solid.
There is a possibility that hearsay evidence is true. But if the evidence is used against you in a court of law, and if the results of your case could yield life-altering consequences, it would make sense that you would only want completely undeniable evidence.
Why does hearsay matter?
Although hearsay can be frustrating, it serves a vital purpose of removing statements of belief or opinion that does not come from an expert. Hearsay ensures the accuracy of evidence. Attempting to avoid statements that would qualify as hearsay will only further solidify your evidence; avoiding hearsay makes your evidence much more difficult to attack.
Hearsay has not always been a component of the rules of evidence. Even today, not every country in the world has a court system that deems hearsay as inadmissible. The accused parties in these countries could be subject to potentially unreliable evidence. We are fortunate to be in a country whose court system allows those accused of misconduct or criminal activity to defend their case by disputing faulty, unreliable, or inaccurate evidence.