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Federal Evidence • Hearsay
EVID#014
Legal Definition
Hearsay is an out of court statement used to prove the truth of the matter asserted.
Note, however, that some statements that are otherwise hearsay can still be used for non-hearsay purposes, such as the effect on the listener, the giving of a warning, or consciousness.
Note, however, that some statements that are otherwise hearsay can still be used for non-hearsay purposes, such as the effect on the listener, the giving of a warning, or consciousness.
Plain English Explanation
You likely have heard of "hearsay" long before ever stepping into law school. It is one of the most commonly known (and commonly misunderstood) legal concepts, so we're going to gently dive into this one to help keep things clear.
First off, let's talk about the rule: "Hearsay is an out of court statement used to prove the truth of the matter asserted." What the hell does that even mean?
It's quite literal: Hearsay is a statement that is made outside of the court (where the trial is being held) that is being offered in hopes that it is evidence to prove the thing that it states. Still a bit confusing, so let's unpack this.
Imagine if Bob told Sam, "I saw Amy steal money from the bank." Then imagine that Amy is arrested and being charged with the crime of robbing a bank. Now imagine that Sam is called up to testify in court and says, "Bob told me that he saw Amy steal from the bank."
What is the purpose of Sam providing that testimony? Obviously the Prosecution is offering it as evidence of Amy's guilt. In other words, the purpose of Sam's testimony is to prove that it is true that Amy did in fact rob the bank.
The problem is that the statement isn't actually Sam's. Sam isn't saying he witnessed Amy steal money from the bank, which would then provide Amy's defense attorney the opportunity to cross-examine Sam and try to clarify or even discredit his claims. Instead, Sam is essentially repeating/parroting an accusation made by Bob and bringing it into the courtroom as-is.
What if Bob was mistaken? What if Bob was drunk? What if Bob has an ulterior motive to lie about Amy? There are so many reasons we should question the validity of Bob's statement, and yet we cannot because Bob isn't hear. Instead, all we have is Sam offering an out of court statement by Bob in an attempt to prove to the court that Amy did the thing that the statement is about.
As a result, courts will generally say, "Nope, sorry, you can't offer that as evidence because it's less reliable than <first-hand testimony>."
This should seem pretty straightforward. On an exam, your job will be to spot any and all instances of an out of court statement attempting to sneak its way into the courtroom.
But that's only the first part of the confusion when it comes to hearsay.
As you will learn in other cards, there are numerous exceptions and exclusions you will need to be aware of. You'll still spot the hearsay (or stuff that appears to be hearsay), but you will also be expected to explain how those statements may still be able to come in under an exception or exclusion.
When dealing with hearsay, it can be helpful to remind yourself of the purpose of hearsay rules: it isn't fair to not allow an opposing party to cross-examine the person who actually made the statement because people can be sneaky liars, or stupid, or both, which can introduce false evidence in the case. That being said, if there are circumstances which reduce the probability of shenanigans and increase the reliability of the statement, then maybe it isn't terrible to let it be considered as evidence.
Keeping that in mind may help you better understand the exceptions and exclusions. For example, one of the Federal hearsay exceptions you will learn about is a "dying declaration," which will allow the out of court statements made from a dying person to be allowed into court if they have to do with the cause of their death. In other words, if Bob shoots Sam and Sam (while believing he is about to die) cries out, "Oh god, Bob just shot me!" Then courts will allow this statement in as evidence that Bob shot Sam. Yes, it's hearsay, and yes it deprives Bob's defense from cross examining Sam (since he's now dead and can't show up to court), but the law says, "Look... it is unlikely that when someone is about to die they would take the time to lie about some random person in order to blame them for the act."
In other words, it's unlikely that Bob would shoot Sam, and Sam would think, "Oh dang, I'm about to die. This is the perfect opportunity to get back at Amy for not returning my PlayStation on time," and scream out "Oh god, Amy shot me!" Thus, the fact that Sam used his dying breath to identify Bob as his killer is worth being allowed in as evidence during the trial.
So keep an eye out for that theme when you're reading through exceptions and exclusions. Generally they exist because something about the situation makes it reasonable to assume that the out of court statement being brought into court is worthy of trust even if you can't critically interrogate the individual who originally made the statement.
First off, let's talk about the rule: "Hearsay is an out of court statement used to prove the truth of the matter asserted." What the hell does that even mean?
It's quite literal: Hearsay is a statement that is made outside of the court (where the trial is being held) that is being offered in hopes that it is evidence to prove the thing that it states. Still a bit confusing, so let's unpack this.
Imagine if Bob told Sam, "I saw Amy steal money from the bank." Then imagine that Amy is arrested and being charged with the crime of robbing a bank. Now imagine that Sam is called up to testify in court and says, "Bob told me that he saw Amy steal from the bank."
What is the purpose of Sam providing that testimony? Obviously the Prosecution is offering it as evidence of Amy's guilt. In other words, the purpose of Sam's testimony is to prove that it is true that Amy did in fact rob the bank.
The problem is that the statement isn't actually Sam's. Sam isn't saying he witnessed Amy steal money from the bank, which would then provide Amy's defense attorney the opportunity to cross-examine Sam and try to clarify or even discredit his claims. Instead, Sam is essentially repeating/parroting an accusation made by Bob and bringing it into the courtroom as-is.
What if Bob was mistaken? What if Bob was drunk? What if Bob has an ulterior motive to lie about Amy? There are so many reasons we should question the validity of Bob's statement, and yet we cannot because Bob isn't hear. Instead, all we have is Sam offering an out of court statement by Bob in an attempt to prove to the court that Amy did the thing that the statement is about.
As a result, courts will generally say, "Nope, sorry, you can't offer that as evidence because it's less reliable than <first-hand testimony>."
This should seem pretty straightforward. On an exam, your job will be to spot any and all instances of an out of court statement attempting to sneak its way into the courtroom.
But that's only the first part of the confusion when it comes to hearsay.
As you will learn in other cards, there are numerous exceptions and exclusions you will need to be aware of. You'll still spot the hearsay (or stuff that appears to be hearsay), but you will also be expected to explain how those statements may still be able to come in under an exception or exclusion.
When dealing with hearsay, it can be helpful to remind yourself of the purpose of hearsay rules: it isn't fair to not allow an opposing party to cross-examine the person who actually made the statement because people can be sneaky liars, or stupid, or both, which can introduce false evidence in the case. That being said, if there are circumstances which reduce the probability of shenanigans and increase the reliability of the statement, then maybe it isn't terrible to let it be considered as evidence.
Keeping that in mind may help you better understand the exceptions and exclusions. For example, one of the Federal hearsay exceptions you will learn about is a "dying declaration," which will allow the out of court statements made from a dying person to be allowed into court if they have to do with the cause of their death. In other words, if Bob shoots Sam and Sam (while believing he is about to die) cries out, "Oh god, Bob just shot me!" Then courts will allow this statement in as evidence that Bob shot Sam. Yes, it's hearsay, and yes it deprives Bob's defense from cross examining Sam (since he's now dead and can't show up to court), but the law says, "Look... it is unlikely that when someone is about to die they would take the time to lie about some random person in order to blame them for the act."
In other words, it's unlikely that Bob would shoot Sam, and Sam would think, "Oh dang, I'm about to die. This is the perfect opportunity to get back at Amy for not returning my PlayStation on time," and scream out "Oh god, Amy shot me!" Thus, the fact that Sam used his dying breath to identify Bob as his killer is worth being allowed in as evidence during the trial.
So keep an eye out for that theme when you're reading through exceptions and exclusions. Generally they exist because something about the situation makes it reasonable to assume that the out of court statement being brought into court is worthy of trust even if you can't critically interrogate the individual who originally made the statement.
Hypothetical
Hypo 1: Bob tells his friend, Amy, that Sam was driving recklessly when he hit Bob's car. In court, Amy tries to testify about what Bob told her. Result: Amy's testimony is hearsay and not allowed to prove Sam was driving recklessly, as it's Bob's out-of-court statement used to prove the truth of the matter asserted.
Hypo 2: During a trial, Bob's lawyer mentions that Sam said he was "going to make Bob pay" a week before a physical altercation. Result: This is not hearsay if the lawyer uses it to show Sam's mindset or intention towards Bob, not to prove that Sam actually harmed Bob.
Hypo 3: Sam is on trial for theft. Bob, a witness, testifies that he heard Timmy say Sam was nowhere near the scene of the crime. Result: This is hearsay if used to prove Sam's actual location during the crime, as it's Timmy's statement made outside of court.
Hypo 4: One day, after a long day of work, Bob decides to eat at SushiHypo. He enjoys a platter of raw fish and returns home. Bob dies. Police investigate Bob's death and noticed he ate at SushiHypo. They believe that his raw fish may have been negligently prepared so they arrest the SushiHypo chef. During his trial, prosecutors attempt to offer into evidence a Yelp review where Sam wrote, "The food here is killer." Sam is not present. Result: Sam's Yelp review is an out of court statement (it was written on Yelp and note made while in court). The reason the prosecutor is offering it as evidence is because Bob is dead and they are charging the chef with killing him, so the statement "The food here is killer" is being offered literally, as in the food will kill you. Obviously you should be noticing how stupid this sounds. "The food here is killer" is likely a positive review, meaning it was delicious. If Sam was in the courtroom, the chef's defense counsel would have the opportunity to ask Sam to clarify what he meant by "killer." But Sam isn't there to provide clarification, and so the court would not admit this statement as evidence due to it being hearsay that doesn't fall under any exclusion or exception.
Hypo 2: During a trial, Bob's lawyer mentions that Sam said he was "going to make Bob pay" a week before a physical altercation. Result: This is not hearsay if the lawyer uses it to show Sam's mindset or intention towards Bob, not to prove that Sam actually harmed Bob.
Hypo 3: Sam is on trial for theft. Bob, a witness, testifies that he heard Timmy say Sam was nowhere near the scene of the crime. Result: This is hearsay if used to prove Sam's actual location during the crime, as it's Timmy's statement made outside of court.
Hypo 4: One day, after a long day of work, Bob decides to eat at SushiHypo. He enjoys a platter of raw fish and returns home. Bob dies. Police investigate Bob's death and noticed he ate at SushiHypo. They believe that his raw fish may have been negligently prepared so they arrest the SushiHypo chef. During his trial, prosecutors attempt to offer into evidence a Yelp review where Sam wrote, "The food here is killer." Sam is not present. Result: Sam's Yelp review is an out of court statement (it was written on Yelp and note made while in court). The reason the prosecutor is offering it as evidence is because Bob is dead and they are charging the chef with killing him, so the statement "The food here is killer" is being offered literally, as in the food will kill you. Obviously you should be noticing how stupid this sounds. "The food here is killer" is likely a positive review, meaning it was delicious. If Sam was in the courtroom, the chef's defense counsel would have the opportunity to ask Sam to clarify what he meant by "killer." But Sam isn't there to provide clarification, and so the court would not admit this statement as evidence due to it being hearsay that doesn't fall under any exclusion or exception.
Visual Aids
Related Concepts
What are hearsay exclusions?
What are the California-specific hearsay exceptions requiring unavailability of the witness?
What are the California-specific hearsay exceptions that don't care whether the witness is available or not?
What are the Federal hearsay exceptions requiring unavailability of the witness?
What are the Federal hearsay exceptions that don't care whether the witness is available or not?
What are the Federal hearsay exclusions?
What is a hearsay exception?
