Hearsay
Hearsay is defined as a statement (which is further defined as an assertion) 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, except when it is admissible.
An out-of-court statement offered for its truth can still be non-hearsay.
For example, if a statement was made by the opposing party and the statement is being used against them as an admission, it is not hearsay. ”Yes, I was driving 20 miles per hour over the speed limit,” is an admission, it is not hearsay and it would be admissible in court.
Once I was cross-examining a mother in a child custody case. I asked, “Your new husband has been telling your son that my client is not actually his father, correct?” The other lawyer objected and said that my question was hearsay because I was asking the witness to confirm a quote from someone who was not at the trial testifying. It was hearsay except for the last part of the hearsay definition: her new husband’s statements to the child were false. The judge looked at me, and I said, “Judge, it’s not hearsay. My client is the child’s father and her new husband and everyone else knows it.” I was allowed to ask the question and force the mother to admit that her new husband was attacking the relationship between my client and his child by way of his ongoing false assertions to the child.
Questions are not statements or assertions. So, a question from an out-of-court third party who will not attend the trial and testify may be admitted as non-hearsay:
“Did you bring a raincoat?”
“Did you call the police?”
“Would you like to schedule your next appointment?”
These are not hearsay statements, as they are questions.
There are legal exceptions to the rule against hearsay that permit the admission of statements that are hearsay. For example, statements that a person makes to medical providers or mental health professionals that are reasonably pertinent to diagnosis or treatment are hearsay but are admissible under the rules of evidence. This means that statements that a minor child makes to its therapist may be admissible from the therapist, even though the same statements from the child to its parent would be inadmissible.
There is a hearsay exception called the “state of mind” exception that allows someone to be quoted about how they are feeling. It has been applied to permit the admission of the out-of-court hearsay statements of victims in numerous criminal cases. Here are some statements admitted under the state of mind exception.
It’s okay bc im [sic] going to tell the truth tomorrow. I’m tired of holding lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday.
and
He has been hitting me and he threatened me and I am afraid of him.
These hearsay statements were permitted, meaning that the person who actually made the statements outside of court did not testify and other people were allowed to quote them at the trial. Obviously, those are extremely incriminating statements. They highlight the point of this article: many statements that seem like hearsay are not hearsay, and even if they are hearsay by definition, they may be admitted into evidence under one of the many exceptions to the hearsay rule.
There is another exception to the rule against hearsay for excited statements made with a sense of urgency. “Oh my God, he’s got a gun!” is hearsay, yet it would almost certainly be admissible. This is just an example. There are many exceptions to the rule against hearsay.
Many court filings raise questions about hearsay. The litigant filing a petition or motion may ask for relief from the court and assert that relief is appropriate based entirely on what someone else has said, something that appears to be purely hearsay. Just because their motion contains or refers to hearsay does not mean they will lose. You have to gather as much information as possible about the context of the statements to analyze whether it may be non-hearsay or fit into a hearsay exception. You also have to realize that the person who filed the petition or motion may subpoena the person who made the statements that they are relying on to testify. They may then tell the judge their observations and statements, and it will not be hearsay at the time of the hearing or trial because the declarant (the witness) is there testifying about their own statements.
If you may be a witness at an upcoming hearing or trial, we encourage you to read our article, Getting Around Hearsay. You will see that we know how to prepare witnesses in an advanced way to anticipate and avoid hearsay problems at trial.