Hearsay for Witnesses

“Objection – Hearsay!” From Perry Mason to Saul Goodman, anyone who’s watched a courtroom drama has heard it said, but what does it really mean? The technical definition of “hearsay” sounds like complicated nonsense to most people: “an out of court statement used to show the truth of the matter asserted.” The important thing for you to remember on the witness stand is that hearsay is second-hand information, and it’s usually not allowed in court except in special circumstances.

There are two parts of the definition of hearsay, and we’ll look at them one at a time. What counts as an out of court statement? A “statement” includes any words that someone besides you said. This includes text messages, notes, things someone said out loud, emails, or any other communication. This also includes any recordings of people talking. A statement is “out of court” if it isn’t said in a court proceeding or a deposition.

What about “to show the truth of the matter asserted?” That’s a bit more complicated. Say I ask you on the stand why you went to Peter’s house, and you tell me that you went because Paul said there was a party there. “There was a party there” is an out of court statement – something Paul said outside the courtroom. What is that statement asserting? That there’s a party at Peter’s house. Are you trying to show that there was a party at Peter’s house? No! You’re just trying to explain why you went to Peter’s house. Whether there was actually a party there doesn’t matter.

People rely on hearsay all the time in normal life, so why isn’t it allowed in court? Courts have rules to make sure that the information they have is the truth. One of those rules is that you can only testify to things you have personal knowledge of – things you have seen, heard, smelled, tasted, or felt yourself. Since you’re there in court, the other side then has a chance to cross examine you and ask you questions to test what you said. Let’s look at another example. Say you testify that “Peter saw Paul steal the money.” Since Peter isn’t there, the other side can’t ask him any questions, like how close he was, if he was sure it was Paul, if it was dark, when it happened, etc. This is clearly hearsay and not allowed.

The hearsay rule has a few major exceptions, plus a lot of little exceptions. Your lawyer will worry about all the little exceptions. The biggest exception is called “admission by party opponent.” That means that you can testify to any statement that the person on the other side said. If you are in a divorce or fighting for custody, you can talk about anything your ex said, texted, emailed, or wrote, and so can anyone who testifies on your behalf. This means, of course, that your ex and their witnesses can also do the same about you.

The other major exception is called the “business records exception.” If a business normally keeps a certain type of records as part of their everyday business, you can present that type of record in court, even though the record is a written statement. The record-keeper from the business will need to certify that the records are records they normally keep, but that person doesn’t need to have personally witnessed what’s in the records.

An experienced family law attorney can assist in preparing your testimony, including any hearsay statements, but having a basic idea of hearsay will help you avoid being interrupted and unsettled by too many objections during cross-examination. Long story short, hearsay is second-hand information, and you want to avoid it as much as possible unless it’s something the other party said.