Robbins: Hearsay and its exceptions
It’s one of those words.
I’ll bet you’ve heard it before; maybe even kicked the tires of it 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? Besides a dramatic heartbeat in a flick or TV show, what jigsaw piece of the jurisprudential puzzle does hearsay fill?
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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 person on the witness stand. Next, the “statement” is the thing the declarant said.
Hearsay is when the declarant or speaker says something where the “thing” is something someone else said. The declarant repeats the statement to prove that the statement 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 Brown) jimmying a 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 Brown jimmied the lock to Jones’ storage shed and hauled off the goodies stored there. Later, Brown is sued by Jones for purloining the goodies. The lawyers get wind of Smith’s remarks to Jones and decide 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 Brown 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 Brown 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), instead Jones is repeating the tale told by Smith to prove the truth of Brown hot-fingering the goods. That, my friends, is hearsay.
But as TV pitchman Billy Mays was fond of saying, “But wait! There’s more!”
You see there are exceptions to the hearsay rule.
The rule exists because second-hand statements are unreliable. Put the guy who said it on the stand. Get it from the horse’s mouth. But sometimes circumstances make what might otherwise be unreliable reliable and under those circumstances, hearsay evidence may be permitted.
Among the hearsay exceptions may 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 only mentioned some of them.
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 a little slippery and an experienced attorney can often find a way to get the desired statement before the court dressed up in different clothing. 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, Brown’s fingerprints on the purloined goods would go a far stretch in proving that … oops, he just might have filched the goods and would circumvent the hearsay issue before opposing counsel could get up on his toes and wag his finger to declaim, “Hearsay, your honor” full of 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 Caplan & Earnest, 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 Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
