Mods: This may end up in IMHO territory, but there may be a factual answer, and I am not asking for legal advice.
Why is hearsay testimony always inadmissible in court? At least on TV that seems to be the case. I understand that it’s not the same as the defendant testifying that they said something, but why can’t it be admitted for what is is?
Hypothetically, if a friend walks up to me and says “I’m going to kill my parents”, and his parents later end up murdered, the fact that he told me that he was going to kill them should count for something. It doesn’t prove that he did it, but it certainly shows intent. Yet I’m pretty sure I couldn’t get on the stand and say what my friend said to me since that would be considered hearsay I assume.
Secondary question: If I had secretly recorded the conversation mentioned above would that recording be admissible in court?
It isn’t always inadmissible. In fact, your example is what’s called a party admission – a statement made by a party to the case – and it is admissible under the federal rules of evidence.
And I should also note, your example is not even technically hearsay under the federal rules of evidence.
I agree that the OP example isn’t even close to hearsay. If your friend said to you, “My other friend said he was going to kill his parents,” that would be hearsay against the other friend.
Think of hearsay as something second-hand. When you testify your friend said, “I’m going to kill my parents,” the defense lawyer can examine that statement – when did he tell you, what else did he say, did he ever say anything like that before, etc.
Hearsay would be if you testify that someone else told you your friend told them he was going to kill his parents. You’re only testifying to what someone else told you, not whether your friend actually said.
It’s because the other side can’t call the person who actually made the statement in order to determine it’s truth.
The example you give isn’t hearsay: you would be testifying as to what the person said. You could be cross examined to determine the truth of what you are saying.
Hearsay is more like, “My friend says that Roger killed his parents.” There’s no way to determine if the friend’s statement is true unless the friend were put on the stand. Your statement would not be allowed in court.
One type of hearsay that’s admissible is a dying statement. If a murder victim says, “Roscoe hurt me,” anyone who hears it can testify. The assumption is that someone dying has no reason to lie.
[ul]
[li]hearsay that isn’t objected to is admissible. [/li]
[li]There are many exceptions to the hearsay rule.[/li]
[li]Hearsay can be also admitted if its not being used to prove the truth of the matter asserted. (i.e., it can be used to prove things such as notice.)[/li][/ul]
Well… Yes. But then it’s not hearsay. Hearsay is an out-of-court statement, offered in evidence to prove the truth of the matter asserted in the statement.
If a statement isn’t offered for the truth of the matter, then it’s not hearsay.
Here’s a fun hypo:
PROSECUTOR: Pease state your name.
DEFENSE: Objection.
THE COURT: On what grounds?
DEFENSE: It calls for hearsay. He didn’t name himself. He was told his name, or read it on some document that isn’t here in evidence. He’s being asked to repeat a fact that he heard out of court, offering it here for the truth of the matter asserted. It’s hearsay.
Some languages have evidentiality built in to them. In these languages, you can’t just say the equivalent of “this happened”. You have to say something like the equivalent of “I saw this happen” or “I was told this happened” or “I think this happened”.
It isn’t, but the list of exceptions is short and they are all pretty special.
That isn’t hearsay. Hearsay is if you then told your friend Jim that your other friend said that.
YOU can testify to what you heard, but JIM only heard what you said the first guy said. Even if Jim is the most honest guy in the world, that doesn’t reflect on whether what YOU said to him was true. They shouldn’t be asking Jim, they should be asking you.
Which leads to one of those exceptions. If you are unavailable to testify, … well that is one of the risks in our system of justice. But what if the reason you are unavailable is that the defendant did something with the specific intent of making you unavailable to testify. Maybe he killed you, or threatened you, or just gave you a million dollars and a ticket to Bolivia.
That might make the judge decide to let Jim testify to what you told him the other guy said.
Depends a bit on the stakes in the case, and the state it all happened in. In some jurisdictions, it is illegal to record a conversation unless all parties agree, in some it only takes one.
That depends on the state, and it can depend on whether the conversation was live, by phone, or broadcast.
For example, here in Oregon, anyone can record a conversation which is being conducted over radio (such as CB) but you can only record a telephone (including cell phone) conversation if at least one party consents to being recorded. If you (the person making the recording) are participating in the conversation, that counts. As for live-and-in-person conversations, it’s only legal to record them if every single person in the conversation is informed that they are being recorded. ORS 165.540 - Obtaining contents of communications If you don’t meet the above requirements, you have broken the law when you recorded it, and anyone who knowingly receives the recording is also breaking the law.
Forget about it being admissible. Just the fact that you walk into the courtroom and say “Hey judge, wanna listen to this illegal recording I made?” could land you in a heap of trouble. You might as well offer to share some illegal drugs with the jury. Mere possession is a crime.
I often wonder about cases similar to the Cosby case. There have been several similar cases in the news over the last few years, but I can’t recall them off hand. One of the “proofs” that the woman is not making up assault charges is that she mentions the incident to a friend not long afterwards. I assume the friend can testify “yes, she mentioned this happened the week after, not ten years after” but it cannot be taken as proof the incident happened so much as proof things were not made up many years later.
No, that wasn’t proof, but rather a restriction on the credibility of the complainant. It was called the doctrine of recent complaint: bid the complainant did tell someone about the rape right away but waited, then the law presumed that her complaint was weak and required greater evidence in support.
“Recent complaint” had the effect of making it more difficult for rape victims to prove their case. It ignored the fact that in such a personal matter, a complainant may need time to build up to making a complainant, which is a well-documented issue in sexual assault matters.
Also, no other offence had this restriction tied to it. A victim of a common assault did not face an extra evidential hurdle if he or she did not complain right away. Nor did a victim of any other offence, like theft. Only rape victims had this added evidential burden.
Canada abolished the doctrine of recent complaint in the mid-80s.
Now, if the complainant in a sexual assault takes a long time to come forward, that can be a matter it inquiry for the defence, but it’s just like any other case where the victim takes time to come forward. It may go to credibility, but based solely on the facts of the particular case, not on an onerous evidential legal burden.
It’s in the Federal Rules of Evidence (US) and many states.
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Fed. R.Evid. 801(d)(1) provides in relevant part that a prior consistent statement is not hearsay if “[tihe declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is… (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.”
In other words, if someone says you just testifying about this now because you were fired from your job and pissed at your former employer, you then introduce evidence that you made the same allegations to your roommate before you were fired.
Here’s a law review article that will tell you more than you ever wished to know on the topic.
Not so, actually. In the simplest form, me going into court and telling the jury what kunilou told me - directly to me - would be hearsay. If I testify to what kunilou told me that Obama told kunilou, that’s two levels of hearsay. You’re exactly right about the theory behind the inadmissibility of hearsay, but the law applies it to a two-party hearsay just the same.
As other posts have gotten into, in the specific case in the OP, it wouldn’t be hearsay for other reasons. But not because there’s only one link in the chain.
Yeah, I’m not sure why everyone is saying that the OP’s “my friend tells me he’s going to kill his parents” isn’t hearsay. It absolutely is! It may not be ‘hearsay’ to OP, but for the purposes of using it in court in a criminal case where OP’s friend is on trial for killing his parents, it would definitely be hearsay.
As Bricker said, hearsay is an out-of-court statement, offered in evidence to prove the truth of the matter. When OP’s friend says “I’m going to kill my parents”, it’s out of court, and OP is then repeating it in court on the stand. Of course, this is assuming it’s entered to prove the truth of the matter asserted - in other words, as proof that OP’s friend did in fact kill his parents. An example of the opposite would be someone saying "I heard X say “I’m going to kill my parents” as proof that X was conscious and could speak English.
Now, while it’s hearsay, it still would always be admissible because one of the big hearsay exceptions is any statement made by the defendant is admissible against the defendant. The idea being that if someone is admitting something that can be used against them, it’s probably reliable enough to overcome the hearsay rule.