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.