If you’ve been in any trial, chances are you’ve heard “Objection, hearsay!” with a frequency that rivals the use of bad catchphrases in sitcoms. However, despite its repeated citation, hearsay remains one of the least understood rules in mock trial. Some of this can be attributed to the length of the rules discussing hearsay. Some is related to the complexity of the rules themselves. Personally, I blame its consistent misuse in legal dramas. Whatever the reason, it seems that most people simply do not get the hearsay rule.
This is a shame, because the proper use of the hearsay rule is among the most powerful weapons in mock trial. This isn’t bringing a gun to a knife fight—it’s a 24-gun battleship squaring off against a canoe. You can take out the most damaging parts of your opponent’s case with a simple rule citation. You can get in statements that will take your case from good to amazing. You’ll win attorney awards, tournaments, international fame, and Bill Gates-ian piles of money.*
Hearsay matters. Learn it.
Before we delve in to the legal definition of hearsay, let’s take a second to discuss the logic behind the rule. As a kid, you may have played a game called telephone. Children sit in a circle, whispering a message to one another. The object of the game is to transmit the original message around the circle without getting any of the words wrong. As any of you who played know, this rarely happened—the message got garbled, details got missed, and important information got left out. At its most basic level, the hearsay rule is meant to avoid getting this kind of distorted message by preventing people from citing the statements of others to say something happened. In other words, if we want to get the statement correct, we’d rather ask the person who had the original message rather then somebody who had it whispered to them in the circle.
This brings us know the legal definition of hearsay: “An out-of-court statement offered to prove the truth of the matter asserted.” There are a number of important things to note in this definition. First, “out-of-court” means that the statement had to come from a source that was not giving sworn testimony. Second, statement is not limited to verbal communication. Written word, hand signals, drawings—anything that communicates information can be considered a statement in the hearsay rule. Finally, it’s important to remember that a statement is only hearsay if it’s used to prove the truth of the matter. Basically, it’s only hearsay if you are trying to prove that the thing said is true. If the statement doesn’t make some claim that a fact is true or is only being used to show how somebody reacted to a statement, it’s not hearsay.
Consider the following example. Let’s say Suzy is testifying in court, and the prosecutors are trying to prove that the Danny was wearing a green shirt. If Suzy saw Danny wearing a green shirt, she can simply say he was wearing a green shirt—it’s not hearsay if she’s simply saying what she herself saw. However, let’s say Suzy never saw Danny, but her friend James saw the green shirt. Suzy can’t say that James said Danny was wearing a green shirt. That’s hearsay because she heard the statement out of court and it is being used to prove that Danny was wearing a green shirt. If the prosecutors want that information, they should call James to the stand so that he can be questioned by both the prosecution and defense about what he saw. Finally, let’s say the prosecutors couldn’t care less what color shirt Danny was wearing, but are interested in why Suzy went to the park. If Suzy says, “James told me Danny was wearing a green shirt, so I went to the park to check it out”, she is not breaking the hearsay rule. It is an out of court statement, but because it wasn’t offered to prove the truth of the matter—that the shirt was green—it does not fall under the hearsay rule.
This is the most basic definition of hearsay. As you might imagine, any rule that takes up a third of the Rules of Evidence is full of complications and exceptions. However, with the basic foundation of hearsay understood, you can move on to the more advanced rules with confidence. If you are interested in the 803 and 804 exceptions to hearsay, those will be covered in depth in later posts.
*Fame and fortune not guaranteed. But you never know.