What is Hearsay?

Hearsay is legally defined as, "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is inadmissible at trial, which means that a witness in the trial cannot quote what someone outside the courtroom said. Day to day conversations are called "out of court statements," and many of those statements fit the definition of hearsay. There are several exceptions to the rule against hearsay, and the rule and its exceptions are not well understood by many attorneys and judges. The basic idea is that out of court statements are unreliable and that it is unfair to call a witness in to quote what someone else said who is not at the trial. "He told me that he heard her say that she was going to the casino." If "he" is not available to testify as a witness, there is no realistic way to challenge that kind of evidence.

Thinking About Hearsay

If you are going to be a witness in a trial, you need to understand that you may not be able to testify about what other people told you. However, you can give unlimited testimony about what you saw, smelled, heard (without quoting someone), felt, tasted, and what you did as a result. As an example: You could be prohibited from saying that someone told you, "He set that building on fire," if the judge determines that it would be hearsay, but you can say, "I smelled smoke. I felt heat coming from that direction. I could hardly breathe. People were running out of the side door. I was dialing 911 on my phone, and then a stranger pointed at another person and made a statement to me. I took a video of the building and both of them with my cell phone." 

Another way of thinking about hearsay, especially if you know in advance that the judge may not allow you to quote what you heard someone else say, is to think of the quote as the monster in a scary movie. In most movies, the monster is actually not as scary as the build-up to seeing the monster. How many movies have you seen where the scariest part is seeing someone walk down a hall where you can't see the end of the hall or what's around the corner? No one in the movie has to say "There's a monster around the corner," for you to know that something bad is probably around the corner, because you can tell by the pacing, the music, and the other things you've seen in the movie. The Netflix show "Stranger Things" uses this technique to maximum effect. Hearsay is all about context, so if you can set the scene for what happened before and after the "hearsay" statement was made, sometimes that can be more powerful than simply repeating the quote. "My phone rang. I answered my phone. I heard my mom's voice. I fell on my knees sobbing and I dropped my phone. I picked up my phone and called my sister, then I drove to the hospital as fast as I could." Did the mother have good news? We know she didn't, even though we don't know what was said. 

Context is Critical

The idea that the background and context for an out of court statement is just as important as the statement itself is a winning concept. The exceptions to the hearsay rule are all about context. For example, there is a hearsay exception for startling events. If a building just burst into flames and someone comes running out of the building and points at someone else and screams, "He set that building on fire!" that statement could qualify as an "excited utterance" exception to the rule against hearsay. The only way to get that statement admitted is in the build-up to the statement, the context describing the heat, the flames, the people running and even that the person being quoted was screaming and pointing while they ran. If you try to shortcut the build-up and go straight to the statement, the judge may not allow you to quote the person because they do not have the context about the situation to accurately determine that a hearsay exception applies. Even if the judge ultimately does not let you quote someone, what you saw and perceived with your own senses, who you saw there, and what you did as a result of what you experienced may all be critical circumstantial evidence for the case. 

Advance Notice is Required

If you are going to be a witness and you heard an important out of court statement, you should tell your lawyer about the statement. Your lawyer can help you assess whether the statement might fit a hearsay exception. If an out of court statement is potentially admissible, it is important to let the other side know that the statement will be offered into evidence. Even if an out of court statement fits a hearsay exception, the rules about hearsay require that everyone in the case know that the statement may be offered. You are typically not allowed to surprise someone with an out of court statement, even if you have good reason to believe that it is an admissible statement. So, your lawyer needs to know the statement, who made it, and the context of the statement so they can assess it and give good advance notice of the statement to the other attorneys in the case. 

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