Hearsay is any assertion made by anyone other than a witness under oath testifying in court when the assertion is offered as proof of the matter asserted. A principal reason why hearsay is restricted in nations which base their laws on the English Common Law system is that the use of such evidence deprives the person affected of his right to confront and challenge the witness in court.
There are no general rules against hearsay in code law countries such as France or Japan. The nations which recognize hearsay as objectionable are in the minority. When the war crimes tribunal was convened after the conflict in Bosnia, the international judges had to improvise a system of civil procedure to use. Although there were judges and counsel from such nations as Great Britain and the United States involved, it was decided that hearsay would not be objectionable.
As noted above, there are, nonetheless, many instances of permissable hearsay. There is no exact list. An estimate I have heard given several times–both in law school and subsequently, while in practice–is that there are about thirty-five commonly used exceptions.
Some of the common ones:
1.) Statements in ancient documents.
For this purpose, “ancient” is often defined as 25 years old or older. The reasoning is that a person would not have the patience to get a lie printed in the newspaper and then wait 25 years to use it to help him perpetrate a hoax.
2.) Death bed statements.
This exception is very narrowly defined. The witness must have an apprehension of death; a cliche is that he must “hear the wings of the angel of death approaching”. Further, the assertion is accepted only if it is: (1) a confession as to something the person who knows he is dying did, or (2) a statement as to his knowledge of what caused him to be dying.
Thus:
On his deathbed, A says that his brother murdered A’s wife. This is excluded as hearsay.
On his deathbed, A says that he murdered his wife.
This is permissable hearsay.
On his deathbed, A says that he robbed the First National Bank in 1966. This is acceptable hearsay.
On his deathbed, A says that he found the money hidden in his brother’s house and so knows he was the one who robbed the bank. This is excluded as hearsay.
On his deathbed, A says he intentionally took poison. This is acceptable hearsay.
3.) Basic facts about community reputation
“Everybody always referred to Caleb as ‘the town half-wit’”. This can be ruled as admissable.
4.) Basic facts of family history
“My grandparents were married in a church ceremony
in County Cork in 1904; I heard about it all the time as a child.” This can be ruled as admissable.
5.) Self-identifying marks
“How do you know the matchbook came from the St. Louis Hilton?” “Because it says ‘St. Louis Hilton’ right on it”. The writing on the matchbook is actually hearsay, but is acceptable.
6.) Excited utterances
“Jeez! That guy must have been going 90 when he hit that lady!” Made by a witness just after the collision, this would be acceptable hearsay.
7.) The behavior of animals and machines, as they do not know they are making assertions.
“What evidence do you have that the defendant reported to work late on the morning in question?” “It says 10:00 right here on his time clock card.” This “statement” by the time clock would be addmissable.
“What evidence do you have that the deceased even knew anyone named Ralph?” “She lived alone, and her parrot says “Thanks, Ralph…Ralph…Hi, Ralph”, all the time”. This would be admissable.
8.) Statements against personal interest.
“And then he said: ‘Gee, I guess I should have checked the gun to see if it was empty before I pulled the trigger’”. This would be admissable.
9.) Basic information about identity.
In his book Helter-Skelter, Manson prosecutor Vincent Bugliosi says that one of the defense attorneys at the trial had once objected to having a witness state what his name was. His reasoning was that man only knew what his name was because he had been told that at some time by his parents and so this was hearsay evidence.
He was correct, but courts don’t care. Similarly, you can state your address, even though you are relying on the statement of whoever put up the street sign near your house.
10.) Tombstone inscriptions.
As alluded to before, a statement that would otherwise be hearsay may be ruled to be non-hearsay because it is being offered as proof of something other than the matter asserted.
For instance, consider this real-life case:
There is a local television evangelist in St. Louis who is notorious for shooting his mouth off about subjects on which he has no training or knowledge whatever. For instance, during the Times Beach debacle he suddenly became an authority on dioxin. Some years ago he undertook an effort to get a convict released. There is, arguably, nothing wrong in that, but he took to discussing legal principles on air about which he had no understanding.
In the sentencing portion of the convict’s trial, character evidence was introduced to show that he had a wanton disregard for human life. Specifically, a former friend testified that he had boasted that he would cut his own grandmother’s heart out if there was money in it for him. The minister insisted this was hearsay and should have been excluded. Nope: the issue of statements against interest aside, this would only be construed as hearsay evidence if he were on trial for an attack on his grandmother.
Similarly, during the O.J. Simpson criminal trial, witnesses were able to testify that they had heard a patrolman say “nigger” on numerous occasions as this was character evidence to demonstrate that he was a racist. It would have been different if his use of the word “nigger” was offered as proof that someone was black.