# Hearsay Testimony in Court **URL:** \ **Category:** Factual Questions\ **Created:** [January 15, 2016, 8:44pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272 "2016-01-15T20:44:51Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [January 19, 2016, 3:25am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/21 "2016-01-19T03:25:10Z")
> [@magnusblitz](#): > > 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. :dubious: He is repeating what he himself perceived. That is not hearsay, that is original evidence Hearsay would be if he had stated “I heard from my wife that he had said that I am going to kill my parents”. The example in the OP is in fact a fairly standard Law School trick question on hearsay; exceptions, the trick being that it is not hearsay at all. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2016, 3:39am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/22 "2016-01-19T03:39:45Z")
> [@UltraVires](#): > > It is hearsay, but an allowable exception: Bingo. Very good. I’ve given this to experienced litigators and had them pause. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 19, 2016, 3:47am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/23 "2016-01-19T03:47:19Z")
> [@AK84](#): > > :dubious: > He is repeating what he himself perceived. That is not hearsay, that is original evidence Hearsay would be if he had stated “I heard from my wife that he had said that I am going to kill my parents”. No. The original is hearsay; what you describe is hearsay-within-hearsay, or “totem pole” hearsay. It’s admissible as long as each portion falls within a recognized hearsay exception. > [@](#): > > The example in the OP is in fact a fairly standard Law School trick question on hearsay; exceptions, the trick being that it is not hearsay at all. Hearsay is an out of court statement, offered in evidence to prove the truth of the matter asserted in the statement. The example in the OP is hearsay, because it’s an out of court statement, offered in evidence to prove the truth of the matter asserted in the statement. It’s probably admissible as an exception to the hearsay rule as an admission. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 19, 2016, 3:57pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/24 "2016-01-19T15:57:36Z")
Well, you are making an assumption here: that the statement is being offered to prove that the friend killed his parents. It may have been offered for some other purpose. Technically, under the federal rules the OP’s example is not hearsay anyway because admissions are nonhearsay rather than hearsay subject to an exception (I should note that this does not seem to be the rule in most state evidence codes, including Florida’s, where it would be hearsay-subject-to-exception). > [@](#): > > Which is what Jack McCoy means when he says “Statement against interest” in response to the defense attorney’s hearsay objection, right? Well, maybe. _Statements by party opponents_ and _statements against interest_ are closely related, but the OP’s example is probably not admissible as a statement against interest. SAIs are only admissible when the declarant is unavailable to testify. Since we don’t try people _in absentia_ in the US, the defendant should be available to testify (and AFAIK it doesn’t count as “unavailable” if the defendant-witness is refusing to testify on Fifth Amendment grounds). On the other hand, an admission by a party opponent can be offered no matter who said it and whether they are available or not. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 19, 2016, 4:50pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/25 "2016-01-19T16:50:51Z")
To expand on what **Bricker** and **RNATB** have said, the point of the hearsay prohibition is that the absent speaker cannot be cross-examined about the statement. The reason the federal rules provide that an out-of-court admission by a party is technically not hearsay is because the speaker is available to testify about it (precisely because he is a party to the case). ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 19, 2016, 6:59pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/26 "2016-01-19T18:59:22Z")
> [@magnusblitz](#): > > 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. By that logic, anything anyone said outside of court is hearsay. In terms of the topic at hand, hearsay is second hand information. You did not hear X directly say this, Y told you X said this. In general, this can’t be testimony that “X said this” - to try to prove X said this, Y must testify that they heard it from X. As discussed, an exception may be if the argument is whether Y ever said “X told me” (or when X told them). Then the topic is not so much about X, but about what Y knew or said about X. “I’m gonna kill him” doesn’t prove the defendant killed him, but it’s one more piece of the puzzle. the circumstances where someone says that and their attitude are particularly important, and second hand evidence can’t really provide that with veracity or detail. (Did he say that because the victim drank milk from the carton, or because he just found him in bed with his wife?) A defendant is entitled to confront his accusers and examine evidence against him, and can’t really thoroughly examine and rebut second-hand or third-hand information - all such information shoul be first hand. ---
**Author:** ![Atamasama](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/atamasama/32/12961_2.png) [@Atamasama](https://boards.straightdope.com/u/Atamasama)\ **Post date:** [January 19, 2016, 9:55pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/27 "2016-01-19T21:55:38Z")
I bet the hearsay is admissible if your buddy’s confession that he was going to kill his parents happened at 3PM (you’re sure of the time because your favorite TV show was starting) and his parents were killed at that same moment on the other side of town. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 20, 2016, 1:04am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/28 "2016-01-20T01:04:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, you are making an assumption here: that the statement is being offered to prove that the friend killed his parents. It may have been offered for some other purpose. Absolutely correct. If it’s offered for some other reason, then it’s not hearsay. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 20, 2016, 1:08am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/29 "2016-01-20T01:08:26Z")
> [@md2000](#): > > By that logic, anything anyone said outside of court is hearsay. No. Just any statement said out of court that’s offered in evidence in court to prove the truth of the matter asserted in the statement. ---
**Author:** ![Andy\_L](https://avatars.discourse-cdn.com/v4/letter/a/c67d28/32.png) [@Andy\_L](https://boards.straightdope.com/u/Andy_L)\ **Post date:** [January 20, 2016, 1:23am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/30 "2016-01-20T01:23:45Z")
> [@Bricker](#): > > No. Just any statement said out of court that’s offered in evidence in court to prove the truth of the matter asserted in the statement. So, if I understand it correctly, if A testifies: "I heard B say at 9:30 on Christmas Eve that he had the Picasso in his trunk " is hearsay if it’s offered as evidence the Picasso was in the trunk, but might (would?) be admissible hearsay, but would not be hearsay at all, if it was offered as evidence that B was not in a coma on Christmas Eve at 9:30, or as evidence that A wasn’t deliberately wasting the police’s time by calling them to look in a trunk that turned out to have only a spare tire and some old newspapers). ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 20, 2016, 3:37am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/31 "2016-01-20T03:37:51Z")
If I testify that I told my daughter goodbye before I walked into the courtroom, that is likely hearsay. My own statement! As **Bricker** said above, stating my name is technically hearsay. I know that this way isn’t technically correct, but in my own mind I have classified all out of court statements as hearsay and allowable out of court statements as “exceptions” to hearsay. To try to sort in my head that this out of court statement is not hearsay, hearsay, and an exception to hearsay is too much and screws with old duder’s head for no real reason. I really didn’t grasp the rule in trial practice until I eliminated the third category in my own mind. And don’t get me started on the “not offered for the truth of the matter asserted” shit. Why else would a lawyer try to admit a statement? It’s sneaky, and I don’t like it. Except when I use it. Seriously, though, the hearsay rules require about a month of evidence class in law school. Then you still will not understand it. Become a judge and you still will not understand it. Read Rule 800 of the Federal Rules of Evidence for a good headache. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 20, 2016, 3:47am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/32 "2016-01-20T03:47:20Z")
> [@Really\_Not\_All\_That\_Bright](#): > > … in the US, the defendant should be available to testify (and AFAIK it doesn’t count as “unavailable” if the defendant-witness is refusing to testify on Fifth Amendment grounds). I gotta disagree with you there. [QUOTE=FRE 804] (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; [/QUOTE] ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 20, 2016, 5:42am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/33 "2016-01-20T05:42:55Z")
> [@Bricker](#): > > No. Just any statement said out of court that’s offered in evidence in court to prove the truth of the matter asserted in the statement. I’m not sure I follow. “I’m gonna kill my parents” proves nothing, there is no truth - the parents may still be alive. Nothing has happened at the time of that statement. From what little I know of procedure (thanks, L&O) it goes to state of mind and intent, not proof of an action or assertion. Are we dancing on the head of a pin here - the old philosophy question (or _Matrix_ question) “how do we know anything is real?” or in this case, “everything is hearsay except physical evidence”. Basically, legal hearsay as the world seems to understand it from innumerable hours of media exposure, is second hand repetition of information - not allowed except for assorted logical minor exceptions. I assume it was in this spirit of the definition that the OP question was asked. If by some technical legal dictionary definition everything is hearsay, then that’s just playing dictionary games. The statements of all parties, entered into evidence, are hearsay. The defendant’s confession is hearsay. What the police say witnesses told them is hearsay, hence most of the police notebooks are hearsay. Depositions are hearsay. Reading back the transcript of the trial is hearsay. So are we using the definition “everything is hearsay”, or the commonly understood meaning, that is “something heard second hand, typically not admissible in court”? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 20, 2016, 2:49pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/34 "2016-01-20T14:49:38Z")
> [@UltraVires](#): > > I gotta disagree with you there. _Touche_. It’s been a year and a half since the bar exam, so I’m shocked I remembered any of the rules of evidence _at all_. 😃 > [@md2000](#): > > I’m not sure I follow. “I’m gonna kill my parents” proves nothing, there is no truth - the parents may still be alive. Nothing has happened at the time of that statement. From what little I know of procedure (thanks, L&O) it goes to state of mind and intent, not proof of an action or assertion. As **Bricker** explained, things are only hearsay if they are offered to prove the content of the statement. This is sometimes called a “non-truth purpose.” It doesn’t matter whether the statement is merely circumstantial evidence of the fact asserted; if it is being offered to show that you intended to kill your parents, it’s hearsay. Though under the FRE it’s not hearsay because admissions by party opponents are not hearsay.\* > [@](#): > > So are we using the definition “everything is hearsay”, or the commonly understood meaning, that is “something heard second hand, typically not admissible in court”? If we are discussing hearsay in a legal context (and we are), the “commonly understood meaning” is irrelevant. I would quibble with your commonly understood meaning anyway; the lay meaning is “something heard second hand” period. The legal definition is not “everything is hearsay,” but “an out of court statement offered to prove the truth of the matter asserted therein.” For the purposes of the legal definition, it is irrelevant whether the statement is second hand. As **Ultra Vires** notes, your _own_ statements can be hearsay. “I saw John kill Sue,” stated under oath at trial, is not hearsay under any circumstances. “I told the police I saw John kill Sue” is hearsay even if stated under oath at trial _if offered to prove that John killed Sue_. \*What hasn’t been explained properly is that there are three categories of “hearsay things.” There is plain old hearsay (not admissible), hearsay subject to an exception (hearsay, but admissible), and “non-hearsay,” which is things that would normally be hearsay but the rules specifically state that they are not hearsay (rather than making them an exception). I find this distinction to be almost ridiculously unhelpful and that we should just have hearsay and exceptions. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 20, 2016, 4:26pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/35 "2016-01-20T16:26:08Z")
> [@md2000](#): > > Basically, legal hearsay as the world seems to understand it from innumerable hours of media exposure, is second hand repetition of information - not allowed except for assorted logical minor exceptions. I assume it was in this spirit of the definition that the OP question was asked. If by some technical legal dictionary definition everything is hearsay, then that’s just playing dictionary games. The statements of all parties, entered into evidence, are hearsay. The defendant’s confession is hearsay. What the police say witnesses told them is hearsay, hence most of the police notebooks are hearsay. Depositions are hearsay. Reading back the transcript of the trial is hearsay. > > So are we using the definition “everything is hearsay”, or the commonly understood meaning, that is “something heard second hand, typically not admissible in court”? There isn’t really a conflict between your two definitions. As a gross generalization, everything said out of court (when offered for its truth) is hearsay, precisely because it is something heard secondhand. Witness statements to the police are hearsay; that’s why one calls the witnesses themselves to testify. Most documents are hearsay, and if you want them admitted as evidence, you’ll need to find an exception. Police notebooks are in fact double hearsay, since they’re out-of-court written statements about someone else’s out-of-court oral statement. Depositions are part of the court’s proceedings, where the witness is subject to examination by all parties, so they’re not hearsay. Even then, they’re generally not admissible as evidence of the truth of their testimony (as opposed to impeachment) unless the witness is unavailable. Reading back the trial transcript is not itself evidence of any kind. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 20, 2016, 10:10pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/36 "2016-01-20T22:10:46Z")
> [@Really\_Not\_All\_That\_Bright](#): > > As **Bricker** explained, things are only hearsay if they are offered to prove the content of the statement. This is sometimes called a “non-truth purpose.” In case it wasn’t obvious, this shoud have read “any other reason is sometimes called a non-truth purpose.” ---
**Author:** ![magnusblitz](https://avatars.discourse-cdn.com/v4/letter/m/b4bc9f/32.png) [@magnusblitz](https://boards.straightdope.com/u/magnusblitz)\ **Post date:** [January 21, 2016, 2:58am UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/37 "2016-01-21T02:58:52Z")
> [@md2000](#): > > By that logic, anything anyone said outside of court is hearsay. Yes, and…? “Hearsay” is one of those concepts that has a bad rap among laypersons, much like “circumstantial evidence”, which is just as valid as direct evidence. There are lots of exceptions to the hearsay rule, but yes, you are correct that the vast majority of conversations that would make for useful evidence are hearsay, because they occurred outside of court. I’m kinda ignoring the “for the truth of matter asserted” bit that others have discussed, mainly because it’s somewhat of a narrow rule where it would come into play, such as the “to show he wasn’t in a coma” situation, and a few others like showing effect on the listener. > [@md2000](#): > > I’m not sure I follow. “I’m gonna kill my parents” proves nothing, there is no truth - the parents may still be alive. Nothing has happened at the time of that statement. From what little I know of procedure (thanks, L&O) it goes to state of mind and intent, not proof of an action or assertion. Jim is on trial for murdering his parents. Bob testifies “Jim told me he was going to kill his parents.” That’s hearsay, because the statement is made 1) out-of-court and 2) for the truth of the matter asserted (to prove that Jim was going to kill his parents). Jim is on trial for robbing a convenience store. His defense is that he was unconscious in a coma the entire day of the robbery. Bob testifies that, on the same day he was supposedly in a coma, “Jim told me he was going to kill his parents.” While it’s still an out-of-court statement, it’s not hearsay because it fails the “for the truth of the matter asserted” part. No one in this case cares if Jim wanted to kill his parents, they just care that the statement shows he was awake and not in a coma on the day of the robbery. > [@md2000](#): > > Are we dancing on the head of a pin here - the old philosophy question (or _Matrix_ question) “how do we know anything is real?” or in this case, “everything is hearsay except physical evidence”. Erm, not really. “Physical evidence” is stuff that actually physically exists and would be introduced as exhibits - photos of the crime scene, the murder weapon, a baggie full of drugs, etc. Apart from that, there’s just plain old testimony. A witness testifies “I heard a gunshot” or “I saw him punch her” or “I searched his pockets and found a baggie containing a white powder I recognized to be cocaine”… none of that is hearsay, it’s based off what the person sensed directly. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [January 21, 2016, 9:46pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/38 "2016-01-21T21:46:36Z")
> [@Northern\_Piper](#): > > 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. That’s odd. I have never seen a fresh complaint witness as being anything other than a positive to the prosecution. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 21, 2016, 10:04pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/39 "2016-01-21T22:04:36Z")
> [@Andy\_L](#): > > So, if I understand it correctly, if A testifies: > > "I heard B say at 9:30 on Christmas Eve that he had the Picasso in his trunk " is hearsay if it’s offered as evidence the Picasso was in the trunk, but might (would?) be admissible hearsay, but would not be hearsay at all, if it was offered as evidence that B was not in a coma on Christmas Eve at 9:30, or as evidence that A wasn’t deliberately wasting the police’s time by calling them to look in a trunk that turned out to have only a spare tire and some old newspapers). Absolutely correct. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 21, 2016, 10:10pm UTC](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272/40 "2016-01-21T22:10:21Z")
> [@md2000](#): > > Basically, legal hearsay as the world seems to understand it from innumerable hours of media exposure, is second hand repetition of information - not allowed except for assorted logical minor exceptions. I assume it was in this spirit of the definition that the OP question was asked. If by some technical legal dictionary definition everything is hearsay, then that’s just playing dictionary games. The title of the thread suggests a different conclusion than you urge here. [Previous page](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272.md?page=1) [Next page](https://boards.straightdope.com/t/hearsay-testimony-in-court/743272.md?page=3)