Robbins: Hearsay and its exceptions
It’s one of those words.
I’ll bet you’ve heard it before, maybe even kicked it around a bit yourself.
In television dramas and in the movies, if there’s a court scene, at some point someone is bound to pop up like a Whack-a-Mole, extend a righteous finger and declaim, “Hearsay, your honor!” to either a hush or gasp from the assembled gallery and the jury.
Objections can indeed be poignant.
But what, exactly, is this beast? Other than a dramatic heartbeat in a movie or TV show, what jigsaw piece of the jurisprudential puzzle does hearsay fill?
To answer that, this primer in a nutshell:
Hearsay is a statement other than one made by the declarant offered into evidence to prove the truth of the matters asserted.
Whoa, hold on there! Let’s take this bite by bite. First of all, the “declarant” is the one speaking, the guy on the witness stand. Next, the “statement” is the thing the declarant said.
Hearsay is when the declarant or speaker says the thing where the “thing” is something someone else said. And the declarant is repeating it to prove that the thing that was said is true.
A quick example might be helpful.
Let’s say a guy (let’s call him Smith) witnesses his neighbor (let’s call him Sheen) jimmying the lock to another neighbor’s storage shed (let’s call the innocent neighbor Jones). Later, over a beer and brat, Smith mentions to his pal Jones that Sheen jimmied the lock to Jones’ storage shed and hauled off the goodies that were stored there. Later, Jones sues Sheen for purloining the goodies. The lawyers get wind of Smith’s remarks to Jones and determine to call Smith as a witness. Smith, however, has disappeared and so the lawyers turn to Jones instead to testify as to what Smith had seen (or, at least, what Smith told Jones he had seen).
Once sworn to tell the truth and nothing but, the question is put to Jones. “Did Smith see Sheen jimmy the lock to your storage shed and make the goodies his own?”
Jones dutifully answers, “Well, Smith witnessed the whole dastardly affair. And Smith said that Sheen made off with my goodies!”
“Objection!” A rise to the feet, a finger pointed skyward. “Hearsay, your honor!”
Rather than Jones testifying that he and Smith had a conversation and what was said to him (which might be permitted if not to prove the truth of what Smith said, but, simply to relay the substance of their conversation), Jones instead is repeating the tale Smith told to prove the truth of Sheen hot-fingering the goods. That, my friends, is hearsay.
But as TV pitchman Billy Mays was fond of saying, “But wait: There’s more!”
Exceptions, of course
You see, there are exceptions to the hearsay rule.
The rule exists because secondhand statements are unreliable. Put the guy who said it on the stand. But sometimes circumstances make what might otherwise be unreliable reliable, and under those circumstances, hearsay evidence may be permitted.
Among the hearsay exceptions might be:
- Present sense impressions (a statement describing or explaining an event, made while or immediately after the declarant perceived it).
- An excited utterance (a statement relating to a startling event, made while the declarant was under the stress of excitement that it caused).
- A then-existing mental, emotional or physical condition (a statement of the declarant’s then-existing state of mind — such as motive, intent, or plan — or emotional, sensory, or physical condition — such as mental feeling, pain, or bodily health — but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will).
- A statement made for medical diagnosis or treatment.
- A recorded recollection.
- Records of a regularly conducted activity.
- Public records of vital statics.
- Family records.
- Statements in documents that affect an interest in property
- Statements in ancient documents (“ancient” in this case generally meaning more than 20 years old).
- Market reports and similar commercial publications.
- Statements in learned treatises, periodicals, or pamphlets.
- Reputation concerning personal or family history.
- Reputation concerning character.
- Declarations against self-interest.
- And what’s known as the dead-man exception (something said in the throes of one’s demise).
I have mentioned only some of them.
Yes, it’s puzzling
It is worth noting that learning this kind of stuff is known to cause law students to pull out their hair, and, until it clicks, one can go around in Escher-like circles in one’s head.
The very reason that the exceptions exist is because time has taught that not all hearsay is inherently untrustworthy. Hearsay is slippery, and an experienced attorney can often find a way to get the desired statement before the court dressed up in different clothes. Even better, if the evidence permits, is to find another source entirely to prove the desired fact.
Rather than, in our example, Jones saying what Smith said, Sheen’s fingerprints on the purloined goods would go a far stretch in proving that, oops, he might have filched the goods. That evidence would circumvent the hearsay issue before opposing counsel could get up on his toes and wag his finger to “Hearsay, your honor!” in righteous indignation.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.