What is Hearsay?
Presidential hopeful Herman Cain says that allegations of sexual harassment are mere “hearsay.” But what is hearsay? Get Legal Lad’s take on this important, but complicated, rule of evidence.
Today’s topic: Hearsay
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
What is Hearsay?
Astute reader Bill has written to me noting the tendency of people on TV shows to shout “Hearsay!” during courtroom scenes. “I would like to know,” says Bill, “what ‘hearsay’ is all about.” I was reminded of Bill’s email when I read about the allegations of sexual harassment directed at presidential candidate Herman Cain. At a recent news conference, Cain described the accusations against him as “hearsay.”
It’s true that Hollywood screenwriters love “hearsay.” But it’s also true that hearsay is an important rule of evidence. However, as I’ll explain in a moment, it’s also a very complicated rule, and the TV shows rarely do it justice, so to speak.
Hearsay is a Statement by Somebody Other Than the Witness
“Hearsay” is used in courtroom proceedings to describe any statement other than one made by a witness sitting in the witness stand in that very proceeding. To illustrate the rule, imagine a witness who testifies “I saw the defendant kill Mr. Smith.” That is perfectly acceptable evidence: the witness is describing what he saw with his own eyes, and the defense can cross-examine him.
But if a witness says “I heard Mr. Jones say that the defendant killed Mr. Smith,” that’s a hearsay statement. Mr. Jones is not there in the courtroom, so the jury can’t get a good look at him and the defense lawyer can’t cross-examine him.
The women making accusations about Herman Cain are not, of course, speaking in court and they’re not paraphrasing the statements of others. Their statements may or may not be true, but they are not hearsay.
Hearsay Must be Offered to Prove the Truth of the Matter Asserted
One important qualification needs to be mentioned: a statement only counts as hearsay if it is offered to prove the truth of the matter asserted. In the example just given, the statement “I heard Mr. Jones say that the defendant killed Mr. Smith” would be hearsay only if it was offered at trial to prove that the defendant did, in fact, kill Mr. Smith. Where a statement is judged to be hearsay, it is usually considered inadmissible under federal and state rules of evidence.
But the statement “Mr. Doe told me that he is actually William Shakespeare” would not be hearsay if it was offered to show that Mr. Doe is mentally unstable. In that situation, nobody is trying to prove that Mr. Doe really is William Shakespeare; therefore, the statement is not being offered for the truth of the matter asserted.
The Origins of the Hearsay Rule
One of the factors leading to the legal hearsay rule was the British judiciary’s reaction to the trial of Sir Walter Raleigh in the early 17th century. Raleigh was convicted and put to death for treason, largely based on out-of-court statements attributed to an accomplice, Lord Cobham. Raleigh demanded Cobham’s presence so that he could cross-examine him, but the court refused. The disgrace of this ruling led judges to develop a hard-and-fast rule against admitting such out-of-court statements at trial. By the middle of the 18th century, lawyers were referring to “hearsay evidence” in much the same way as they do today.
Exceptions to the Hearsay Rule
There are exceptions to the hearsay rule. I’ve already discussed one – the concept of statements not offered for the truth of the matter asserted. But evidence rules also generally exclude from the definition of hearsay certain categories of statements that are considered inherently reliable.
One example is the so-called “Excited Utterance” – a statement that is blurted out at the spur of the moment. Another is the Statement Against Interest; that is, a statement that is so obviously contrary to the speaker’s vested interests that it’s likely to be true. And finally, there is the “Dying Declaration” – based on the notion that deathbed statements are inherently reliable. Of course, we’ll have to trust the lawyers on that one. Dead men tell no tales – and they can’t be cross-examined either.
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About the Author
Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).