The Rule Against Hearsay Evidence

Out-of-Court Statements are Usually Not Admissible in Court

May 12, 2009 Suzanne Bechard

Hearsay is an out-of-court statement, submitted into evidence to prove the truth asserted. Such statements are not admissible under the rules of evidence

The rules of evidence provide that a witness cannot testify in court concerning what someone said outside of court. That seems simple enough, but hearsay can be a difficult concept in the law. Even experienced trial judges sometimes get confused over the basic issue of whether a statement is or is not hearsay. One of the reasons the legal concept of hearsay proves so puzzling is because hearsay under the rules of evidence is a narrower concept than everyday hearsay.

Why Hearsay is Not Admissible Under the Rules of Evidence

One is used to thinking of hearsay as simply repeating something someone else has said. In that way, hearsay is similar to ordinary gossip. This is generally viewed in a negative light for a number of good reasons, not the least of which is that second-hand information is often unreliable.

For example, the original speaker could have been misquoted, either accidentally or intentionally. Furthermore, the listener, being at least one step removed from the original speaker, cannot witness his or her mannerisms, voice inflections or body language and thus cannot judge the original speaker's credibility. This inherent tendency for unreliability is one reason why hearsay is generally excluded from evidence in civil and criminal trials.

The "Truth of the Matter Asserted" is Key to Hearsay Under the Rules of Evidence

Under the rules of evidence, hearsay has a very specific meaning. According to Rule 801(c) of the Federal Rules of Evidence, hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

When trying to determine whether a statement fits the definition of hearsay, the first question one should ask is, "What is the statement being used to prove?" If the statement is not being used to prove the truth of the statement itself, but rather to prove something (anything) else, it is not hearsay under the rules of evidence.

Stated another way, if the out-of-court statement is not offered in evidence to prove the facts contained in the statement, it is not hearsay. If the out-of-court statement is offered in evidence to prove the facts contained in the statement, it will be considered hearsay under the rules of evidence, and, barring some exclusion or exception, it will be deemed inadmissible.

Classic Example of Hearsay in the Law

A question that often appears in one form or another in law school discussions on the rules of evidence goes something like this: A witness testifies that she heard John say, "Janet has the most beautiful eyes in the world." The statement is being used to prove that John loves Janet. Is the statement hearsay under the rules of evidence?

The "truth" of the statement (the fact contained within the statement) is that Janet has the most beautiful eyes in the world. The statement is being used to prove that John loves Janet. Thus, this statement is not being offered to prove the "truth" of the statement itself (that Janet has the most beautiful eyes in the world), but rather to prove something else (that John loves Janet). Accordingly, the statement does not meet the legal definition of hearsay.

Keeping this simple illustration in mind can help one distinguish between hearsay and nonhearsay under the rules of evidence.

Source: Federal Rules of Evidence

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