Most of my clients know that hearsay is inadmissible at trial. They also know that hearsay is a statement made by a third party. Well actually, sometimes hearsay is admissible, and sometimes what we think is hearsay, actually is not hearsay. So what is hearsay? Hearsay is defined as “an out of court statement made by the declarant to prove the proof of the matter asserted.” Well that’s helpful to anyone who didn’t take Evidence in law school?!?
If you want to know what rally hearsay is, and why it is unreliable evidence, consider the following scenario. You want to dress appropriately for the big game on Saturday and you mention it to your daughter. She tells you, “John said it is going to be 70 degrees and sunny at game time.” If you are like me, you may have a few questions, such as:
- Is John a reliable predictor of the weather?
- Is John basing his statement on personal information, or is he relying on someone else?
- Does John harbor a bias, such that he may want to mislead my daughter?
- Does John have a financial interest in maximizing attendance at the big game?
- Is John trustworthy?
- Are John’s perceptions reliable?
Of course, you realize that if I ask my daughter any of these questions about John, she is sure to say, “I don’t know.” There’s the rub. . . if we don’t know the answers to these questions, then why should we consider John’s statement at all? Without being able to test the reliability of the statement and the credibility of the declarant who made the statement, what you have is a statement that is inherently unreliable. It’s hearsay. If you want to offer John’s statement at trial, you will need to call John as a witness so he is prepared to answer these questions. At that point, the jury will be able to assess the probative value of the statement and choose whether or not to give it credit.
I’m glad we could have this little talk about hearsay. That said, do what your mother tells you. Bring a jacket to the game just in case.