Understanding hearsay, and knowing when to use it | VailDaily.com

Understanding hearsay, and knowing when to use it

Rhon Robbins

Pick your favorite lawyer show. No doubt, somewhere along the line, one of the “suits” has popped like a jack-in-the-box on speed, his or her face appropriately apoplectic, and self-righteously stammered to the Court, “Objection! Hearsay, your Honor!”You probably cheered too, “Yeah, give em h..l!” Presuming, of course, that the suit in question was the protagonist of choice. It’s the same objection you would have made had you not been so comfortably snuggled in your couch. The question may have lingered, though, as you settled back into the ploughed acreage of your plumped settee, “What the heck is hearsay anyway?”Well, for those of you who have wondered about such things, this is the place.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 bit by bit. First of all, the “declarant” is the one speaking, the one saying the thing to which the suit popped up as if on the rebound from a bungee jump. The “statement” is the thing the declarant said.OK, a deep breath here; it gets harder now. What hearsay is is when the declarant or speaker says the thing where the “thing” is something someone else said. And the speaker/declarant is repeating it to prove that the thing that was said is true.OK a quick example. Just picking names at random. Let’s say that a guy with the unlikely name of Adam Aron (which, by the way, spells “no Ramada” backwards), witnesses his neighbor shooting a dog (I know, I know, this is all really far-fetched, but go along with me, OK?). Later, over a beer and brat while trying figure out how to carve up the rest of the world between them, Mr. Aron mentions to his pal, Andy Daley, that the psychopath in question shot a dog without the slightest provocation. Later still, the psychopath is sued by the owner of the dearly departed pooch. The rabid lawyers get wind of Mr. Aron’s desultory philosophation with Mr. Daley and determine to call Mr. Daley as a witness.Once sworn to tell the truth and nothing but, the question is put to Mr. Daley. “Did the psychopath kill the doggie without provocation?”And Mr. Daley answers, “Well, Adam Aron (which, by the way spells “no Ramada” backwards) witnessed the whole dastardly affair. And Mr. Aron said that the deed was unprovoked.””Objection! Hearsay, your Honor!”Rather than Mr. Daley testifying that he and Mr. Aron had a conversation and what was said to him, Mr. Daley is repeating the tale told by Mr. Aron to prove the truth of the unprovoked doggie attack. That, my friends, is hearsay.If the jury wants to know what Mr. Aron witnesses, then he should weave the tale before them himself. Mr. Aron, in this scenario, was a percipient witness. That is, he experienced facts relevant to the matter with his own senses. He certainly can testify as to what it was that he experienced, whether through his sight, hearing, taste or other senses.It would go something like this. “I saw the psychopath level his .22 Remington long rifle and take a bead on the poor innocent pooch. Then I heard the blast. I felt the recoil of the round compress the wind against my chest and smelled the cordite in the air. I ran to the aid of the wounded doggie and felt his lifeless from.” This has credibility. Mr. Aron experienced the canine execution firsthand.And that’s what hearsay is all about. Credibility. Testimony, to the greatest extent possible, should be taken from the source. Like Evian. Simply, the testimony should not be filtered through another’s senses and perceptions.”Hearsay” is evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say or what he or she “claims” to have heard others say. Accordingly, hearsay, presented as evidence, does not derive its value solely from the credibility of the witness, but rests mainly (if not entirely) upon the truth and competence of other persons not present before the Court.In most jurisdictions, there are a myriad of expectations to the hearsay rule, that is circumstances under which the hearsay statement offered may be admitted. Generally speaking, these exceptions are allowed because they are believed to be inherently trustworthy. These exceptions are what make lawyers pull their hair out and are often susceptible to honest differences of opinion.One of may exceptions to the “hearsay rule” is excited utterances, a statement relating to a startling event which is made while the person making the statement was under the stress of the moment. The reason it may be allowed is that experience has taught us that, at least generally speaking, people make up stories upon calm refection. In the stress of the moment where a person may blurt out something like, “Oh my God, the psychopath is leveling his gun at that entirely blameless dog!” the statements tend to be more reliable. Thus, they may be admitted.There are other similar exceptions.So, next time a t.v. lawyer with perfect hair leaps up in an amphetamine-inspired bound from his/her soporific daze, finger poised to castigate the witness for improper utterances of hearsay, turn calmly to your sofa-mate, delicately interrupt his/her popcorn-munching, and eruditely detail to him or her the finer points of hearsay. Of course, properly attributing the source of your new, impressive wealth of legal wisdom.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at (970) 926-4461, or at robbins@colorado.net.Vail Colorado

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