What is hearsay?
Technically, hearsay is defined as “an out-of-court statement admitted for the truth of the matter asserted.” To understand what hearsay means, we will break down each part of the definition:
- A statement can be what someone said out loud or a statement might also be written or typed on a document, like a letter, an email, a text message, a voicemail, or some other kind of record.
- Out of court means simply that the statement being entered into evidence, either through testimony or written on a document, was said or created outside of the courtroom and not during the trial or hearing.
- Admitted means given, presented, or entered in the court hearing. So, in most cases, it is evidence or testimony that a party, or a party’s witness, is giving to the court for the judge to consider when s/he makes a decision about the case.
- For the truth of the matter asserted means that the evidence or testimony is being presented to the court as proof of the fact contained in the statement. So, in other words, you want the judge to believe that whatever you testify that someone else said to you or what you show the judge that someone else wrote is true and you want the judge to rely on that information.
Whether or not you are offering a statement to the judge “for the truth of the matter” can depend on the context of the case. The same statement could be offered for two different reasons and one reason may not be hearsay. For example, if a witness testifies “He said ‘The weather sure is great today!’” this might not be hearsay if it is admitted just to show that someone said those words to the witness when they met. In other words, if the witness wants to show that this is how he greeted her. However, if the weather on a certain day is a major issue in the case, and the witness says “He said ‘The weather sure is great today!’” as a way to prove that the weather was, in fact, great, then a statement like this would be hearsay.
Let’s look at some examples of how to spot hearsay within the different types of evidence:
1) In testimony - In most instances, if a question asks for what a person said, or when a witness begins a sentence by saying “She said…” or “He said…” you will probably be able to object based on hearsay. For example:
- Questions that call for hearsay are objectionable:
- “What did he say to you?”
- “Can you tell me what the letter said?”
- Testimony about what someone else said is hearsay:
- “His sister told me that he has guns under his bed.”
- “My doctor said that I have a concussion.”
- “The teacher pulled me aside and said Johnny has been hitting other students.”
Remember, sometimes, a witness might be saying what the other person said, just to show that the other person said something, anything. If the content of what was said does not matter for the court case, then it is possible that the statement is not “admitted for the matter asserted,” and therefore it is not hearsay. For example:
- Testimony that is not trying to prove a fact about the case is not hearsay:
- “The officer said to stay calm.”
2) In documents – Letters, reports, texts, emails, or other documents that originated out of court can be excluded based on hearsay, unless they qualify for a hearsay exception, which many will. The following might all technically contain statements that are hearsay, and thus could be excluded from evidence – however, for many of these listed, exceptions apply that could allow them to be admitted into evidence:
- Facebook posts;
- utility bills;
- caseworkers’ notes;
- hospital records;
- police reports;
- report cards;
- therapists’ notes;
- drug test results.
If you plan to admit a document like one listed here into evidence, you should look through the hearsay exceptions and think about which would apply in your situation. The other side might not object to the documents, or the hearsay rules might be more relaxed in the court you are in, but it is good to know which exception will allow your evidence, just in case it becomes an issue.
What are some hearsay exceptions?
Most courts do not allow hearsay evidence, unless it qualifies for a hearsay exception, because it is considered to not be reliable evidence. However, hearsay evidence or testimony can be valuable evidence for judges or juries when deciding a case. In some situations, the only way a person can get a certain fact in front of the judge might be with evidence that is technically hearsay. Therefore, the rules that cover trials (“rules of evidence”) contain exceptions for evidence that might otherwise be considered hearsay when there is something about it that makes it more reliable than typical hearsay evidence. You can look to your state’s rules of evidence for a complete list of exceptions. The following are the most common hearsay exceptions that you might encounter:
Admission by the other party (known as “admission by a party-opponent” or “admission against interest”): Statements made by the other party that can be used against him/her will often qualify under this hearsay exception. When the other party says something out of court way before anyone knew that there would be a lawsuit, it’s considered likely that the party was telling the truth at that time. This is why it is possible that it may be admitted as an admission by the other party, even if the statement is technically hearsay. For example, if the other party once admitted to his friend, “Whenever I am watching my daughter, I lock her in her room so that I can have my friends over to party without her bothering me,” the friend could testify to this on the witness stand in your custody hearing.
This exception could also include documents that you want to introduce as evidence that might otherwise be considered hearsay, like letters, text messages, Facebook posts, etc. that were written by the other party.
Excited utterance: An excited utterance is a statement that a person makes immediately after a startling event. Statements made out of excitement are considered to be more reliable because a person is not thinking as much about what s/he is saying. The classic example is a recorded 911 call, which is made immediately after a traumatic incidence. Even if the person who made the call is not testifying, the recording of the phone call can be admitted as evidence under this exception.
Prior inconsistent statement: If a witness or a party says something while testifying that differs from a statement s/he made previously, the prior statement may be admissible under this exception. This most often occurs when there have been depositions, and a witness makes a statement during the trial that is not consistent with his/her testimony in the deposition. This is an important exception that is often used during cross-examination. If you hear a witness testify differently than what you remember him/her saying at depositions, you can question the witness about it. If s/he is not willing to admit to the prior statement that s/he made, you can read the witness’s prior statement from the deposition transcript into the court record while s/he is testifying to say, “Isn’t it true that today you said X, but in the deposition that you gave on [date], you said Y.”
Statement for purposes of medical diagnosis or treatment: A statement that you make to a doctor or another healthcare professional about symptoms you are experiencing may qualify for a hearsay exception. For example, if you are riding to the hospital in an ambulance because your leg is broken, and you tell the EMT that your partner ran over your leg with the car, the EMT could testify about what you told him/her.
Statement against interest (also called a “declaration against interest”): If a person who is not a party to the case made a statement that is against his/her legal or financial interest, then it might qualify for a hearsay exception. However, in order to use this exception, the person who made this out-of-court statement must be “unavailable” to testify at the trial for reasons such as refusing to follow a subpoena to testify, serious illness, or death.
Business record: Records that are kept by a business, government, or other organization in the regular course of business may qualify for a hearsay exception. This might be hospital records, inventory statements, rent balance sheets, utility bills, report cards, or other documents. To qualify for this exception, you might have to get certified records from the business or organization that generated the records instead of just using a copy that you have on hand or that you print out. Or, you might have to call someone from that organization as a witness to testify as to their business practices with regard to keeping records before the judge will allow you to enter the records into evidence.
Public record: Records that are kept in the public domain might also qualify for a hearsay exception. This can include birth records, marriage certificates, or sometimes, police records and other documents that are kept in an official capacity.