Blah, blah, blah…
So I’m taking EVIDENCE now in school, and we’re only 3 weeks in and I’m already soooo lost.
I’m hung up on this hearsay thing, I’m confused about what is hearsay and what is not hearsay.
I’m hoping some of the ESQs here might be able to set me straight since my professor is old and gruff and I’m afraid if I go to his office hours he’ll go all little red riding hood on me and eat me…
More or less what this means is you can’t testify to something that you were told by someone else.
If you’re trying to prove that Da Defendant killed Da Victim, you can’t testify “Dis Otherguy told me that Da Defendant killed Da Victim.”
FWIW, IANAL but using the laymen’s KISS principle:
From Dictionary.com –
hearsay
From Dictionary.law.com –
hearsay
hearsay rule
the basic rule that testimony or documents which quote persons not in court are not admissible. Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanor and credibility of the alleged first-hand witness, and the other party’s lawyer cannot cross-examine (ask questions of) him or her. However, as significant as the hearsay rule itself are the exceptions to the rule which allow hearsay testimony such as: a) a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court (called an “admission against interest”); b) business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept; c) official government records which can be shown to be properly kept; d) a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness’s memory about the event; e) a “learned treatise” which means historical works, scientific books, published art works, maps and charts; f) judgments in other cases; g) a spontaneous excited or startled utterance (“oh, God, the bus hit the little girl”); h) contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous; i) a statement which explains a person’s state of mind at the time of an event; j) a statement which explains a person’s future intentions (“I plan to….”) if that person’s state of mind is in question; k) prior testimony, such as in deposition (taken under oath outside of court), or at a hearing, if the witness is not available (including being dead); l) a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial (this differs from an admission against interest, which is admissible in trial if it differs from testimony at trial); m) a dying declaration by a person believing he/she is dying; n) a statement made about one’s mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead (“my back hurts horribly,” and then dies); o) a statement about one’s own will when the person is not available; p) other exceptions based on a judge’s discretion that the hearsay testimony in the circumstances must be reliable.
Hearsay is any out of court statement used to prove the truth of the matter asserted. It’s less confusing than it sounds.
Lets say somebody testified that the victim in an assault case said to him “Black Bart just shot me in the neck!” If the statement is being used to prove the truth of the matter asserted, that Black Bart shot the victim in the neck, it’s hearsay. It may still be admissable even though it’s hearsay, since it’s probably an “excited utterance” which is an exception to the hearsay rule under FRE 803. The idea is that hearsay is usually unreliable, but certain circumstances make it more reliable than others and are thus get exceptions. An “excited utterance” is supposedly more reliable because the declarant doesn’t have time to fabricate.
However, that same statement may not be hearsay at all may not be if the statement is being used for another purpose other than proving the truth of the matter asserted. “Black Bart shot me in the neck” isn’t hearsay if it’s being used only to show that the victim was capable of speech. Change the facts above a little and make it a homicide trial or civil action for assault; if the declarant thought he was dying when he made the statement and is unavailable to testify (some exceptions require that the declarant be unavailable, some don’t), it would be admissable as a “dying declaration” under FRE 804 (b)(2), even though it’s hearsay. Again, the exception is because dying declarations are though to be more reliable than other types of hearsay, since supposedly nobody wants to meet their maker with a lie on their lips.
AHHHHHHH!
Still very confused…
Perhaps you could explain what is confusing you. Otherwise, it’s difficult to address your confusion.
One thing you might keep in mind is whether a witness is testifying about things he saw or heard firsthand or testifying about things he or she learned from other people and/or read in documents. Stuff in the latter category is potentially hearsay.
Just a suggestion, but have you read the rules? I think they are pretty clear. As my evidence prof explained it, the important thing to ask is “What are you trying to prove?” with the statement. If the thing you are trying to prove is the content of the statement itself, then it is hearsay (subject to tons of exceptions), if, as Pravnik illustrated you are trying to prove something else, then it may not be hearsay. Watch out for non-assertive conduct where the federal rules and many state common law rules differ. If you are still confused, I suggest Emanuel’s guide to evidence, I found it helpful when I took Evidence over the summer.