What is Hearsay?

One way to think about hearsay evidence is to think about it as “second-hand” evidence. It’s evidence that doesn’t come directly “from the horse’s mouth.”

Of course, it’s a little more complicated than that. Hearsay does have a definite and complicated legal definition. The classic definition that we lawyers learned in law school is that “hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Like I said— it’s complicated. Let’s unpack this definition.

First, keep in mind, in our definition, “statement” means both oral or spoken and written statements.

Second, “other than by a witness while testing at the hearing” means someone saying something outside a courtroom.

Now we come to the more challenging part: “is offered to prove the truth of the matter stated.”. Let’s try some examples. I want to show that Chris was speeding at the time of the accident, and I know Carol was a passenger in the car. Can Carol testify that Chris was speeding at the time of the collision? Yes. But, what if Carol told Alex that Chris was speeding at the time of the crash? Can Alex testify that Carol told him that Chris was speeding? No. That would be hearsay because I’m trying to use Alex’s testimony to prove that Chris was speeding.

Is Alex’s testimony that Carol told him that Chris was speeding at the time of the collision ever admissible? Yes. If I want to prove that Carol thought Chris was speeding, I could use Alex’s testimony that Carol told him that Chris was speeding. Why? Because I’m not offering that statement to prove Chris was speeding. Instead, I’m using it to prove Carol thought Chris was racing. Therefore, it is not offered to prove the truth of the matter (that Chris was speeding) and is not hearsay.

What Is The Significance Of Evidence Being Hearsay?

So that’s hearsay. But what is the significance of the hearsay rule? In general, hearsay evidence is inadmissible in court. So, if one side tries to offer hearsay evidence, the other side can object and ask the judge object the evidence. If the judge determines the evidence is hearsay, the evidence will not be admited (unless there’s an exception, which is discussed below).

But remember, a statement is only hearsay if it’s offered to prove the statement’s truth. So a statement might be inadmissible for one purpose (to prove that Jim was driving a red car, for example) but admissible for another (to prove that Christine believed Chris was driving a red car). Specifically, lawyers often use out of court statements to show things like knowledge or intent. If there is no reason to offer the evidence other than proving the truth of the matter, the party seeking to provide the proof will need to find an exception to the hearsay rule.

Also, note that when an out of court statement is offered to prove something other than the truth of the matter stated, the judge will typically give the jury special instruction. For example, take the red car example above. There, I offered Christine’s testimony about Juan telling her that Jim was driving a red car to prove she believed Jim was driving a red car. This is not hearsay, but I can’t use it to prove Jim was driving a red car. So the judge might instruct the jury that it may not consider that evidence in deciding whether Jim was driving a red car. Of course, in practice, it’s difficult for juries to consider the evidence for one issue and ignore it for another, but that’s the rule.

There are exceptions to the hearsay rule, but that really gets complicated. I promise I’ll cover that in another later post.

Now you know, though, what this complicated, often used word means.