# "What you say can and will be used against you" -- but not for you? **URL:** \ **Category:** Factual Questions\ **Created:** [September 10, 2010, 9:29pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337 "2010-09-10T21:29:31Z")\ **Posts on this page:** 7\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 12, 2010, 5:50pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/21 "2010-09-12T17:50:55Z")
> [@md2000](#): > > (IANAL) Hearsay is third-party evidence; anyone can say what the perp, victim or anyone else told them directly. “Yes, Fred told me he recognized it was Joe and not a bull moose in his sights. Joe told me he jumped up and down and yelled ‘shoot me!’ several times.” They cannot repeat what they heard from someone else who heard it - “Sam told me Fred admitted to him that Joe was unarmed.” The prosecution (or defense) needs to produce Sam in that case. > [@dzero](#): > > Hearsay means repeating anything that was said to you by any party. what you describe are first and second hand hearsay. Second hand hearsay is not admissible under any circumstances - no exceptions. First hand hearsay is admissible if it falls within one of the many hearsay rule exceptions. To expand on my comment correcting the above: Hearsay is an out-of-court statement, offered as evidence in court to prove the truth of the matter asserted in the statement. So two things make a statement hearsay: where is was uttered, and what the party putting into evidence is trying to prove by doing so. Q: “What, if anything, did Emma say?” A: “She told me that Steve admitted he’d been embezzling from the bank.” Is that hearsay? We don’t know. If the purpose of the testimony is to establish that, sure enough, Steve was embezzling from the bank, then it’s hearsay. But if the purpose was to explain why Emma took the otherwise inexplicable step of ordering an unscheduled bank audit, it’s admissible. Even if it’s hearsay, we must examine whether it fits in to the recognized hearsay exceptions. Note well that there’s a difference between, “It isn’t hearsay,” and “It’s hearsay, but admissible as an exception to the hearsay rules.” So let’s imagine that we want that statement in evidence to prove that Steve was embezzling from the bank. Steve’s statement to Emma is hearsay for that purpose, but it’s admissible as an admission against Steve’s penal interest. But Emma’s statement about Steve to the unnamed witness is ALSO hearsay, and we don’t have any reason to imagine it also fits in any exception. Contrast that with this scenario, where Steve’s being prosecuted for killing Emma and the theory of the case includes Steve’s motive: Q: “What, if anything, did Emma say just before she died?” A: “She told me that Steve shot her and said now she’d never be able to tell anyone how he’d been embezzling from the bank.” Here we have the same thing: an out-of-court statement, offered in evidence to prove that Steve was embezzling. Once again, Steve’s statement to Emma is admissible as a declaration against his penal interest. But now we can hear Emma’s statement as well, because her utterance was made under belief of impending death, and it concerned the cause or circumstances surrounding that impending death – another exception to the hearsay rule. So this “totem pole” hearsay, or what **dzero** calls “second hand hearsay,” is sometimes admissble, as long as each of the combined statements conforms with an exception to the hearsay rule. ---
**Author:** ![dzero](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@dzero](https://boards.straightdope.com/u/dzero)\ **Post date:** [September 12, 2010, 6:43pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/22 "2010-09-12T18:43:22Z")
So your contention is that you can essentially play “telephone” (where a chain of people repeat something to each other down the line) with the hearsay rule as long as at each step an exception to the hearsay rule is invoked. Is that your argument? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [September 12, 2010, 8:26pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/23 "2010-09-12T20:26:57Z")
> [@dzero](#): > > So your contention is that you can essentially play “telephone” (where a chain of people repeat something to each other down the line) with the hearsay rule as long as at each step an exception to the hearsay rule is invoked. Is that your argument? Actually, \*\*Bricker \*\*stole that argument from the Federal Rules of Evidence: > [@](#): > > Rule 805. Hearsay Within Hearsay > > Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. [http://www.law.cornell.edu/rules/fre/rules.htm#Rule805](http://www.law.cornell.edu/rules/fre/rules.htm#Rule805) ---
**Author:** ![Gray\_Ghost](https://avatars.discourse-cdn.com/v4/letter/g/c0e974/32.png) [@Gray\_Ghost](https://boards.straightdope.com/u/Gray_Ghost)\ **Post date:** [September 12, 2010, 8:48pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/24 "2010-09-12T20:48:05Z")
One further method to get hearsay testimony in front of the jury, that I haven’t seen mentioned yet, is to use the hearsay for impeachment, usually for prior inconsistent statements of the impeached witness, and not for the truth of the hearsay statement itself. Since you aren’t trying to prove the truth of the hearsay statement itself, just that the impeached witness at one time may have made earlier inconsistent statements to what they have testified to in this proceeding, the hearsay doesn’t need to fall within one of the exceptions. (Or so I remember, it’s been awhile since Evidence.) The other side is permitted an instruction that the hearsay is to be only used for impeachment and not the truth of the matter asserted. I’d be interested in hearing from actual practitioners whether juries actually take such instructions into meaningful account. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 12, 2010, 9:06pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/25 "2010-09-12T21:06:15Z")
> [@dzero](#): > > So your contention is that you can essentially play “telephone” (where a chain of people repeat something to each other down the line) with the hearsay rule as long as at each step an exception to the hearsay rule is invoked. Is that your argument? Yes. That is my argument. > [@Gfactor](#): > > Actually, \*\*Bricker \*\*stole that argument from the Federal Rules of Evidence: > > > [@](#): > > > > Rule 805. Hearsay Within Hearsay > > > > Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. > > [http://www.law.cornell.edu/rules/fre/rules.htm#Rule805](http://www.law.cornell.edu/rules/fre/rules.htm#Rule805) Thanks for spoiling my big reveal. 🙂 As **GFactor** ’s spoiler points out, not only is it my argument, but it’s the argument advanced by the Federal Rules of Evidence and the states that adopt substantially similar rules, which is most of them. In fact, although I don’t say one doesn’t exist, I don’t know of a state that doesn’t permit totem pole hearsay. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [September 12, 2010, 9:13pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/26 "2010-09-12T21:13:12Z")
> [@Gray\_Ghost](#): > > One further method to get hearsay testimony in front of the jury, that I haven’t seen mentioned yet, is to use the hearsay for impeachment, usually for prior inconsistent statements of the impeached witness, and not for the truth of the hearsay statement itself. Since you aren’t trying to prove the truth of the hearsay statement itself, just that the impeached witness at one time may have made earlier inconsistent statements to what they have testified to in this proceeding, the hearsay doesn’t need to fall within one of the exceptions. (Or so I remember, it’s been awhile since Evidence.) > > The other side is permitted an instruction that the hearsay is to be only used for impeachment and not the truth of the matter asserted. I’d be interested in hearing from actual practitioners whether juries actually take such instructions into meaningful account. It depends. The overall test of the admission of any evidence is that the probative value outweighs the prejudicial value. So even if a particular statement is slightly probative on impeachment, if it’s highly prejudicial it will fail that balancing test and be excluded on that basis. Obviously juries are not robots; I’d much rather take such a statement out with a “prejudicial vs. probative” argument than trust a jury to regard it for limited purposes. ---
**Author:** ![Visual\_Purple](https://avatars.discourse-cdn.com/v4/letter/v/5daacb/32.png) [@Visual\_Purple](https://boards.straightdope.com/u/Visual_Purple)\ **Post date:** [September 12, 2010, 11:01pm UTC](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337/27 "2010-09-12T23:01:37Z")
As Bricker’s comment about states that follow rules similar to the Federal Rules implies, evidence rules vary from jurisdiction to jurisdiction. I’m away from any good source just at the moment, but I’m pretty sure that one common source of variation has to do with a question already raised, namely whether a statement by a party is hearsay at all. [Previous page](https://boards.straightdope.com/t/what-you-say-can-and-will-be-used-against-you-but-not-for-you/553337.md?page=1)