Chances are we’ve all heard someone say, “That’s hearsay!” Perhaps we’re guilty ourselves of expressing an opinion on the matter. But frequently what “hearsay” really is is misunderstood—even by some lawyers.
Hearsay has a specific meaning in the law. You might call it a “term of art.” Generally, hearsay is defined as an out-of-court statement offered in court to prove the truth of the matter asserted. What!? Did you have to read that twice? Let’s break it down in parts:
1) A statement made outside of a courtroom
2) Being offered up in a courtroom, at a trial or hearing
3) And being offered up to prove the truth of what the statement asserts.
So we’re looking for (1) statements, (2) made out of court, (3) being presented in court to prove the substance of what was said. That’s hearsay! And we don’t like hearsay in our society because it’s not trustworthy (most of the time!)—it’s rumor, generally speaking. (Hearsay as defined, however, can be nonverbal conduct. For example, it can be a point of the finger that identifies someone. Surely, that’s a statement made without words.) But that doesn’t tell us why it’s not admissible in court, why it carries such a negative connotation.
We frown upon hearsay as a society because really it’s a shortcut. It’s the mechanism by which someone is trying to prove something without producing the source of the proof.
Example: Witness in court testifies: “Someone told me that it was Ryan James who stole the cookie from the cookie jar.”
Bull! Did you see it? How can you prove it? Bring this “someone” into court. Put them up on the stand, swear an oath, and subject themselves to cross-examination.
That’s the evil of hearsay: fundamentally, it’s the end-around the constitutional guarantee to confront witnesses. Let the actual witness’s perceptions be tested. Are you sure it was Ryan? How far away were you? Were there other people around? Was it dark? Was it his twin? (I don’t have a twin). Was he actually stealing? Was he putting a cookie back in the jar that was left out? Let this “someone” answer these questions since, obviously, the testifying witness cannot.
We don’t like shortcuts in our society, and we have the say-it-to-my-face mentality. Yet, hearsay, of course, violates these societal norms and principles, and for that reason it’s generally not admissible, unless it falls into one of countless exceptions.
Those individual exceptions will be the subject of following posts. But suffice it say for now: hearsay is not just any statement made by a person and repeated by another . Specifically, hearsay is a statement made out of court that is being offered in court to prove the truth of what is asserted. That’s hearsay!