Legalese — Hearsay

image design: Marin Duff
image design: Marin Duff

Hearsay is another of those legalese words that you hear often. Hearsay is simplified as something that someone else told you. Of course, nothing in the legal world is that simple. The best way to describe it is by example:

Let’s say Jim tells Bob, “I helped Billy steal a case of copy paper from work.” If Bob were to repeat this to Sally, it would be hearsay. But let’s say Bob is testifying in Court. In the case of State v. Jim, Bob could say that Jim told him that Jim was involved in the Great Paper Caper because Jim is the defendant and is in the room when Bob says these things and could properly cross examine him.

If Bob were out of town, and Sally were called to testify, it would be double hearsay, and not admissible, no matter who was in the room.

If Bob were to testify in the case of State v. Billy, he couldn’t testify about what Jim told him, because Jim isn’t in the room. Unless, of course, Jim is going to testify later because he worked out a sweet deal with the DA in exchange for his testimony, in which case it would be fine for Bob to say what Jim told him. Jim being in the room later is good enough. (Of course, there are other potential objections to Bob’s testimony, such as Bob’s testimony being cumulative, or ‘merely bolstering’ the testimony of Jim, but all those exceptions to the exceptions are too much and not relevant for these purposes.)

Now, let’s say Jim had been shot by Billy because Billy didn’t want him to testify. It is pretty clear Jim isn’t going to make it. Bob runs to Jim’s side to comfort him in his last moments. “Why?” Bob cries. “Why? Who did this to you? Why did they do it?” With his last dying breath Jim croaks out, “It was Billy. Billy shot me because he didn’t want me to say I helped him steal the paper. Avenge my death!” Jim then dies fairly dramatically and the scene fades to black.

In that case, even though Jim clearly can’t be in the room to testify, Bob could testify about what Jim said to him because it is what is called a “dying declaration.” This is an exception to the hearsay rule on the theory that people tend not to lie when they know they are about to die. Interestingly enough, if the paramedics were to arrive right then and there and miraculously and heroically save his life, Bob could still testify about what Jim said because it isn’t Jim’s death that is the critical part of this hearsay exception, but that Jim really thought he was about to leave the earthly realm.

Let’s follow that ridiculous scenario out a little further: Let’s say Billy shoots Jim for the aforesaid reasons, but Billy is a lousy shot and only shoots him in the shoulder. Jim knows he’s going to live, although his shoulder is probably going to tell him when it is going to rain for the foreseeable future. Bob, Jim’s brother, his best friend, and the best man at his wedding, goes to visit Jim in the hospital, wherein Jim tells Bob the whole sordid story. He also says that he is tired of living a life of petty theft, and wants to make up for his crimes by joining the Peace Corps and helping the folks in the Sudan get clean drinking water. Because, as in all Hollywood type tear jerker stories there has to be tragedy just when you think everything is starting to go well, on the way to the Peace Corps office to sign the final paperwork, he gets hit by the number 12 bus and, while he survives, he suffers a traumatic brain injury and the only word he can say is “airbrake.” He says “airbrake” when he is hungry, when he is cold, when he is tired, and when he thinks something on America’s Funniest Videos is particularly funny. This is very sad, but it inarguably makes him unable to testify about what he and Billy did with the paper, and who shot him. Since Bob is someone that Jim normally takes into his confidence, and since Jim told Bob this story not as a self serving alibi, but as a soul-bearing reflection on his past life, it has what the law calls “sufficient indicia of reliability” and Bob is now allowed to testify about what Jim told him because of the “Necessity” exception.

Officer Jones is the officer that got called to the scene of the crime. She has just finished rescuing a kitten from a tree when he hears the radio dispatcher say, albeit in police code language, “There is a man shot in the alley behind the tire shop on Maple Street. A white male about five foot nine wearing a Chicago Cubs jersey was seen fleeing the scene.” Officer Jones hands the kitten to Sally’s daughter Emily, and hops in her patrol car and heads, lights and sirens blaring, to Maple Street. As she approaches, just rounding the corner, she sees a white male, about five foot nine, wearing a Chicago Cubs jersey running at full speed. Officer Jones slams on the brakes and hops out of the car, tackling the man, who turns out to be Billy, and puts him in the back of the car. Officer Jones can testify about what the radio operator told her because of the exception to the hearsay rule that allows you to testify about something someone said that caused you to do something. The key is that you are not saying what someone else said to prove the truth of it, but rather to explain your own “course of conduct.” Why did Officer Jones knock Billy to the ground? Because of what the operator said.

There are whole textbooks written about hearsay and its seemingly limitless exceptions and pitfalls. I have only scratched the surface here, and it is sometimes one of the most argued about evidentiary points in a courtroom because it comes up so often.

This article was written by a lawyer, but should not be considered legal advice in any way, shape, or form. It is written for general (and generally vague) informational purposes only. In order to properly evaluate your case, a lawyer must examine all the facts and circumstances that are particular and personal to your situation. I have not done that here.

About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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