If you watch legal television shows or movies, you've likely seen a witness make a statement in court and an attorney stand up and say: "Objection, hearsay." It's a common scene and you might think the concept is pretty simple. But like many aspects of the law, hearsay is more complicated than it may seem.
The basic definition of hearsay, which all law students learn, "is an out of court statement offered for the truth of the matter asserted." But what does that mean?
In plain language, hearsay generally means that a person can't testify in court about what was said out of court by another person. The testimony is not admissible. The other person (called the "declarant") must be available to testify about what he or she said. Hearsay is generally not permitted because it deprives the other party of the right to cross examine the person who supposedly said something.
The right to confront one's accusers is protected by a portion of the Sixth Amendment, which states that in criminal prosecutions "the accused shall enjoy the right ... to be confronted with the witnesses against him."
However, courts do allow certain types of hearsay. There are several exceptions to the hearsay rule contained in the Federal Rules of Evidence.
When it is allowed, hearsay is admitted more often in civil cases than in criminal cases. In a civil case, if there is no objection, the court may allow hearsay.
Hearsay is normally thought of as a verbal statement made by someone out of court. But it can also involve written documents, non-verbal conduct or silence of a party who is not in court. For example, in one case, a business charged that products it purchased were defective. In court, a witness testified that no complaints were received from other subsequent buyers of the products. That amounted to proof that they were not defective. However, the court held this silence of subsequent buyers to be hearsay and inadmissible. (James K. Thompson Co v. International Compositions Co, 191 App. Div. 553, 181 N.Y.S, 1920)
Here are a few exceptions to the hearsay evidence rules in court:
1. The declarant is unavailable. The Supreme Court ruled that statements made to police could be admitted as testimony if the defendant caused the person making the statement to be unavailable. (Giles v. California, 2008)
In that case, the defendant was convicted of killing a woman, who had previously told police that he threatened her.
In addition to death, there are other reasons why a declarant is unavailable to testify. For example, the person may be mentally or physically ill or could be exempt from testifying due to the marital privilege.
2. A person excitedly makes a statement after a stressful event. Hearsay may be allowed if an individual makes an "excited utterance," which is defined as a statement made under stress and caused by a startling event. As such, it is not the product of studied reflection and possible fabrication. An example might occur immediately after an accident when an injured person makes comments to police or to an emergency medical technician.
3. A person makes a "present sense impression." This exception involves making a spontaneous statement while perceiving an event or condition — or making a statement immediately afterwards. There needs to be a short time frame between the event and the statement. In certain instances, present sense impressions are believed to be reliable and true because there is no time for distortion. In other words, the person is describing events as they unfold.
When exceptions are made to admit hearsay, the court must find the statements trustworthy.
As you can see, although hearsay is generally not admissible in court, there are several exceptions when it may be allowed. This article only covers a few of them. If your case proceeds to trial, your attorney will know when hearsay can and cannot be used as evidence to more effectively represent you. The rules can allow important information to be admitted — or exclude damaging information.
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