Hearsay in United States Law - Common Misconceptions

Common Misconceptions

One major misconception about the hearsay rule is that hearsay is never admissible in court. While the general rule is that such evidence is inadmissible, there are many exceptions.

There are two other common misconceptions concerning the hearsay rule. The first is that hearsay applies only to oral statements. The hearsay rule applies to all out-of-court statements whether oral, written or otherwise. The Federal Rules of Evidence defines a statement as an oral or written assertion or nonverbal conduct of a person, if the conduct is intended by the person as an assertion. Even written documents made under oath, such as affidavits or notarized statements, are subject to the 'hearsay rule'.

The second common misconception is that all out-of-court statements are hearsay. This is not the case. An out of court statement may or may not be hearsay depending on the purpose for which it is offered. If the statement is being offered to prove the truth of what it asserts, then it becomes hearsay. When offered for any other purpose the statement is not hearsay. For example: Witness testifies that yesterday he spoke to Jim (who was in Vermont) on the phone and that Jim made the following statement, "It's raining in Vermont!" If the attorney is seeking to use this statement to prove that it was in fact raining in Vermont, then it is hearsay. But, if the attorney is seeking to use the statement to prove that the phone lines were working that day, or that Jim had not lost the power of speech, or for any other purpose, then the statement is not being offered to prove the truth of the matter asserted, and therefore it is not hearsay.

Consider an additional example:

A police officer, hears cries of "Help, John is trying to kill me!" from inside a house. Believing that there is a crime in progress, the officer kicks the front door down and enters the home to discover the homeowner, John, assaulting a victim, Monica, who is crying and visibly shaking. John is charged with attempted murder. Two separate trials might result from these circumstances.

1. First, a criminal trial against John, who proclaims his innocence and demands a trial for the criminal charges alleged.
2. Second, a civil trial in which John sues the police officer for invading his home, wherein the officer will assert that there was just cause to enter the home because he had a genuine belief that a crime was occurring.

In the first trial, the issue is whether John attempted to kill Monica. The Officer is asked to testify to what he heard Monica scream from inside the house: "Help, John is trying to kill me!" This statement would be hearsay. The officer is being asked to testify to what Monica said to prove that John attempted to murder Monica. Unless the attorney can show that this statement falls within an exception to the hearsay rule, the factfinder (the judge or jury) may not consider Monica's statement (this particular statement, however, would likely be admissible because of "Excited Utterance" and "Present sense impression" exceptions).

In the second trial, however, the issue is not whether John tried to kill Monica but rather whether the officer entry into the home was lawful. Here, the statement is not being offered to prove that John tried to kill Monica, but it instead is being offered to prove that the officer had probable cause to enter the home. Whether John was actually trying to kill Monica is irrelevant to the issue at hand; what matters is whether the officer believed that Monica was in danger and whether it had been necessary to kick down the door to investigate further. Monica's statement is evidence to that effect because a reasonable person having heard Monica's cries for help would fear for her safety.

A person's own prior statements can be hearsay. For example, suppose a person is testifying on the stand. In relation to an automobile accident where a blue truck struck a yellow car, the witness testifies, "I told the police officer the truck was blue" to establish the color of the car (as opposed to whether he had lied to police, or the officer had falsified the witness reports). This statement is an out-of-court statement offered for the purpose of proving the truth of the matter asserted, and is therefore hearsay. The witness is testifying about what someone said in the past. The fact that it is his own statement does not change the hearsay nature of the statement.

If the witness testifies, "The truck that struck the yellow car was blue," the statement is not hearsay. The witness is not testifying about a past statement. He is not relating in court what someone outside of court said, but is merely relating an observation.

The rule that a person's own statements can be considered hearsay may be confusing. By "forgetting" who is testifying on the stand and merely looking for statements like "I said," "I wrote," "I testified before that," "The document says," and the like, most confusion can be eliminated.

In this example, simple logic tells that there is a difference: while the first statement may be true, it does not assert anything about the truth of the matter stated. The witness may have told the officer that the truck was blue, but that may not have been the truth; he might have been mistaken or lying.