Hearsay is information Person A learns from Person B, but Person A has no direct experience that would indicate that information is true or false. Hearsay cannot be used as evidence in most U.S. courts, because Person A, who has no direct experience with the event he’s reporting in court, is not as reliable a witness as Person B, who did have the direct experience.
When deciding whether or not a piece of evidence is hearsay and is therefore not allowed in court, parties and their attorneys typically ask three questions:
- Is the evidence a statement? Does it assert a fact or some kind of information? Statements may be verbal (“He told me it was raining that day”), in writing (“This council concludes it was raining that day”), or gestures that assert some kind of fact (nodding or pointing).
- Was the statement made outside of court, or outside a court proceeding like a deposition?
- Is the evidence being offered to prove that what the statement says is true or false?
For example, suppose that in a personal injury case, the injured plaintiff was crossing the street in a crosswalk when she was hit by the defendant, who was driving through the intersection and did not try to stop. To show that the defendant has already admitted he’s at fault, the plaintiff calls a bystander, Sue, who arrived shortly after the accident to help. When asked what happened, Sue says, “A guy at the scene told me the defendant admitted the accident was all his fault.”
Sue’s response is a “statement”: it contains an assertion of fact – that the defendant said the accident was all his fault. That statement was made out of court: Sue said she heard it from someone at the accident scene. Finally, the statement was offered to show that its contents (“the defendant admitted the accident was all his fault”) are true, that the defendant did admit fault in the crash. This statement is therefore hearsay, and it cannot be used at trial unless it falls under one of the many hearsay exceptions listed below.
Identifying hearsay correctly can be tricky, because even though many pieces of evidence may sound like hearsay, they don’t actually meet all three requirements of the test. For instance, suppose that in the example above, the plaintiff wants to use Sue’s answer “A guy at the scene told me the defendant admitted the accident was all his fault” not to prove that the defendant did say the accident was his fault, but to prove that Sue then refused to help the defendant because she believed the accident was his fault.
In this case, because the statement “the defendant admitted the accident was all his fault” is offered to answer the question “Why didn’t you help the defendant?”, it is not hearsay. If it were offered to answer the question, “Did the defendant say who was at fault?”, it would be hearsay.
Similarly, information that is not a “statement” does not fall under the hearsay rule, although such information is usually not challenged on the grounds of hearsay. Also, statements that are made under oath are also not hearsay, although they may be excluded from certain civil or criminal trials for other legal reasons.
As if hearsay was not already hard enough to understand, there are many exceptions to the hearsay rule. The Federal Rules of Evidence list twenty-three exceptions to the hearsay rule, along with a “catchall” rule that allows hearsay under certain conditions. The twenty-three exceptions are:
- records of businesses and public agencies
- evidence of the absence of a business or public record
- statements about the absence of a public record
- “ancient documents” (more than 20 years old)
- certain public records or reports
- market reports and commercial reports
- family records made for family purposes
- marriage, baptismal, and similar certificates
- certain reports of a judgment or conviction
- court judgments about personal history, family history, general history, or boundaries, where that information was essential to the judgment
- excited utterances or spontaneous statements
- statements of someone’s present sense impressions
- statements of someone’s present physical, mental, or emotional condition
- statements made in order to get medical care
- learned treatises used to question an expert witness
- past recollections recorded
- recorded documents indicating an interest in real estate
- documents that reference recorded documents indicating an interest in real estate, if the reference is “essential” to the document
- records of a religious organization concerning family history or personal history
- records of vital statistics
- reputation concerning boundaries or general history
- reputation of family history
- reputation of a person’s character
In addition, a hearsay statement may be admitted in court if it meets all of the requirements listed below:
- the statement is soundly guaranteed to be trustworthy
- the statement helps to prove or disprove a fact that is material to the case
- the statement is more helpful than non-hearsay evidence that can reasonably be brought into court
- admitting the statement would “further the cause of justice”
- all the parties have been notified that the hearsay statement will be admitted into evidence
- the statement is not “testimonial” under the Confrontation Clause (for criminal cases only)
In addition to the two dozen hearsay exceptions, some statements that sound just like hearsay are simply excluded, or deemed “not hearsay,” by many federal and state rules of evidence. A statement is excluded as “not hearsay,” and may therefore be admitted in court, if it is any of the following:
1. A prior statement by a witness. Prior statements by witnesses called at trial are admissible, even though they are hearsay, if:
- the witness is cross-examined at trial or deposition, and
- the statement was made under oath and is inconsistent with what the witness is now saying under oath, or
- is consistent and is being used to rebut a claim that the witness’s prior statement was inconsistent, or
- identifies a person the witness saw at that time.
2. Admissions of a party opponent. Statements made by one party to the case and offered by another party are not hearsay if:
- the statement was made by the party or by an agent or someone authorized acting on the party’s behalf, or
- the party has adopted the statement as his own or has asserted that he believes it is true, or
- the statement was made by an agent or employee of the party, about the agency or employment, while the person was employed by the party, or
- the statement was made by a co-conspirator in order to further the conspiracy.