Whenever you watch any television show based on courtroom drama, you're likely to hear one of the lawyers jump up and shout “Objection! Hearsay!” and then launch into an argument with devastating results. So what is hearsay as an objection to evidence? And how does it work? Can you object to it? And do the objections always work? Find out below.
“Hearsay” is one of the most famous words of legalese, although to some extent it is being replaced on television with “he said, she said.” What exactly is hearsay? Why is it objectionable? And are there any ways hearsay can come into evidence?
The actual legal definition of hearsay is pretty easy. It's an out of court statement sought to be introduced into evidence (in court) as evidence of the truth of what was said. Let's break that down a little bit.
The hearsay prohibition comes from the ancient (in U.S. Law) right to face one's accusers. If the accuser is allowed to make a statement outside of the sight of the jury that is considering it, without being cross-examined to establish context and believability, you have not been allowed to face your accuser. With a few exceptions, that won't be allowed if it is objected to.
An out-of-court statement means that it was said, by someone, outside of the courtroom in question. That means that the statement was made by somebody who, generally, was not under oath (although it could have been said in another court, under oath) in the presence of the people who now need to decide whether it was true or not.
Here's a simple example: Jane remarks to a friend one day that, “that guy must be over six feet tall!” Bob heard her comment and later, while attempting to prove that Joe is over six feet tall, testifies that “Jane said he must be over six feet tall.”
But what if it's used to prove that Jane was alive and able to communicate that day? Then it isn't being used to prove how tall Joe was. Rather, it's being used to prove something the person testifying can be questioned about and the jury can decide the truth of. If the question involves when Jane was kidnapped, for example, the fact that she was seen and able to make off-handed comments could be crucial. The accused can carefully ask Bob how well he saw Jane, whether she seemed comfortable, etc. So the statement would not be hearsay for that purpose.
So you see that “hearsay” involves both a person out of court and a purpose for the use of the testimony. And hearsay can be written or spoken, it doesn't matter which as far as the rule is concerned.
Now let's take a likely example from the debt law context (although the most common will involve business records, a subject for another day). If Bill Collector is testifying he “verified” your debt by calling John Doe Creditor when you asked for verification, the statement is not hearsay regarding the Fair Debt Collection Practices Act's requirement that verification be done. But if Bill tries to introduce John Doe's statement as proof that you do, in fact, owe the money, it's hearsay because the jury or judge would need to see John Doe to decide whether he's speaking truthfully and accurately about you.
There is one final twist to the hearsay rule you should know about, called “party admissions.” That rule makes statements made by a party to the lawsuit, even if made outside of court, not hearsay if they are offered to be used against that party. So if you admit to a debt collector that you owe money during an angry phone call, you may hear that statement again in court. Another good reason to be very careful when you speak to debt collectors.
In debt cases, hearsay shows up primarily in two places: in motions for summary judgment, and at trial. In both of these cases, the debt collector will be trying to get something someone else knew or said (records of debt) actually into evidence where it can "count" against you. In both cases, you must object in order to keep it out. At trial, you just say, "objection, hearsay!" In motions, however, you not only must make the objection but also argue to the court (as you must also be prepared to do at trial) why it is hearsay. Judges are very aware of what hearsay is, but the courts generally will allow into evidence anything that is not objected to (they'll treat your objection as "waived," or lost). There can also be some prejudice against the less wealthy, so you must be prepared to argue against some resistance. If you stand up, though, you will probably win in the end. Be tough.
There is an important exception to the hearsay rule, and that is the Business Records Exception. That allows parties to introduce records created by someone else under certain circumstances which demonstrate the "trustworthiness" of the records. Click here to read about this exception. Winning your case may very well depend upon you understanding the rule against hearsay and the business records exception.
Check out our Guide to Legal Research and Analysis for a guide to researching and laws and cases in the most effective way. But legal research is more about what you do with what you find, and so this is a primer on legal thinking and analysis as well.