What Is Hearsay and Why Does It Matter?
Hearsay, though technically a noun, is better understood as an adjective that gets used to describe certain pieces of evidence. Generally, hearsay evidence can be easily understood as secondhand evidence. For instance, if a person is testifying about what another person told them, or about something they read that was written by someone else, that testimony can be considered hearsay. In short, hearsay involves a person testifying about another person's statements.
A common issue surrounding hearsay is whether the secondhand statement is being presented as a true fact, or for some other reason. Lawyers refer to this issue as whether the statement is being used to prove the truth of the matter asserted. Typically, the hearsay rules require excluding secondhand testimony presented as truth, unless it falls into one of the many exceptions.
In court, a witness can only testify about incidents they have personal knowledge of, or personally witnessed. However, hearsay evidence can still be used at trial when it falls under one of the exceptions. While each state maintains their own hearsay rules, the Federal Rules of Evidence's (FRE) sections 803 and 804, detail numerous exceptions which are frequently mirrored by the states with some variation.
As a preliminary matter, the hearsay exceptions fall into two broad categories, and then several smaller categories. Broadly, whether the speaker or writer of the secondhand statement is available to testify has a significant impact. If they are not available, there are only five exceptions, whereas if they are available, there are over 20 exceptions. Some examples of common exceptions include when the secondhand statement:
- Is an admission of guilt by a defendant;
- Contains an admission of other criminal or civil liability;
- Is an "excited utterance" or statement made as a result of surprise, shock, or in the heat of the moment;
- Is being used to prove/describe the state of mind of the person who heard the statement; or
- Is the testimony of a witness who has died.
Why Is Hearsay Excluded?
Attorneys frequently will go to battle about whether a piece of hearsay evidence should be allowed in court. Even when hearsay fits within an exception, it can still be potentially excluded under other rules of evidence. When it comes to what evidence a court can consider, the rules of evidence are designed to ensure that evidence is reliable and fair to use. The federal and state rules on hearsay mostly balance the reliability and importance of a particular piece of evidence against the fundamental right of a defendant to confront an accuser as well as requiring witnesses to testify from their own personal knowledge.
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