Vail Daily column: What is hearsay? |

Vail Daily column: What is hearsay?

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 hell!” 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. Let’s say a guy (let’s call him Smith) witnesses his neighbor (let’s call him Sheen) jimmying a lock to another neighbor’s storage shed (let’s call the innocent neighbor Jones). Later, over a beer and brat while trying figure out how to carve up the world between them, Smith mentions to his pal, Jones, that the psychopath in question jimmied the clock to Jones’ storage shed and hauled out a couple of statuary goddesses that were secreted there. Later still, Sheen is sued by Jones for purloining the goddesses. The rabid lawyers get wind of Smith’s remarks to Jones and determine to call Smith as a witness. Smith, however, refuses to cooperate. Instead, they determine to put Jones on the stand to testify as to what Smith had seen.

Once sworn to tell the truth and nothing but, the question is put to Jones. “Did Smith see the psychopath jimmy the lock to your storage shed and make the goddesses his own?”

And Jones dutifully answers, “Well, Smith witnessed the whole dastardly affair. And Smith said that Sheen made the goddesses his own!”

“Objection! 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 proof of what Smith said, but, simply to relay the substance of their conversation), instead Jones is repeating the tale told by Smith to prove the truth of Sheen purloining the goddesses. That, my friends, is hearsay.

If the jury wants to know what Smith witnessed, then Smith should weave the tale himself. Smith, 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 Sheen stealthily approach the shed. He took something from his pocket, a tool of some sort. He looked left, then right over his shoulder, inserted the tool from his pocket and jimmied the lock. Then he entered and emerged with one of the goddess under each arm. He closed the door, looked about again and ran.”

This has credibility. Smith experienced the goddess caper firsthand.

And that’s what hearsay is all about. Credibility. Testimony, to the greatest extent possible, should be taken from the source. Like Evian, I suppose. 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 many exceptions to the “hearsay rule” is an “excited utterance,” 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 running off with the goddesses!” the statements tend to be more reliable. Thus, they may be admitted.

There are other similar exceptions.

So, the next time a TV 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. His practice areas include business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) and seen on ECO TV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address,

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