What is Hearsay in Law?
The term "hearsay" originates from the Old French word "hersee" which means to "hear." The term meant the idea of "to hear from here say." It is an out of court statement that is made to prove the truth of the matter asserted.
Hearsay in legal terms is "a statement (oral or written) made out of court that is offered as evidence of the truth of the matter asserted." Black’s Law Dictionary Seventh Edition , West Group Publishing 1999
In general, hearsay exists in most states in civil matters. However, the rules surrounding admissibility tends to vary from state to state and may depend upon the particular facts of a case. Hearsay is often addressed by the trial court before the matter goes to trial thus avoiding a further complication of evidence being heard by a judge or jury at trial.
General Rule: Hearsay Is Not Admissible In Court
In general, hearsay evidence is inadmissible, which means the judge won’t allow it to be entered into the record by a witness. What is a hearsay statement, you might ask? Putting it simply, hearsay is evidence which relates to the matter in dispute and is based on what someone other than the witness said, or what you heard someone else say about the matter. Essentially, hearsay is gossip or rumor. It hearsay is considered evidence of unknown reliability, because while the person repeating or claiming it may believe it to be true, there is no way to know for sure because they’re not the one who originally heard it and repeated it to you. So if it is a statement about something you tried to sell online without knowing whether your customer was really scamming you, that’s a case of hearsay because you don’t know whether "John Smith" is a real buyer or not, so it shouldn’t be admissible. If you are claiming John Smith conned you, but didn’t actually meet John Smith, you can’t come to the court and say, "John Smith told me he was going to give me this money, and when I sent him the package, he jacked me, and never sent it." That is hearsay. You need to say, "I had a contract with a john smith selling him plastic spoons, my contract details were…" and tell the court what details were in it. Witnesses can’t just state a fact without giving the context behind that fact. Hearsay is widely accepted as being unreliable, because it is based on someone else’s word. You trust that person, but there’s no way for the courts to know for sure. If there’s no way to prove that the statement is true, then it’s no good for the court.
Exceptions To The Hearsay Exclusion
Exceptions to the hearsay rule allow for the admissibility of certain testimony or evidence. Such exceptions are founded on the rationale that certain statements or documents carry sufficient indicia of reliability or trustworthiness to be considered as evidence; even though they are not based on first-hand knowledge of their authors. Examples of exceptions to the hearsay rule in civil court proceedings include spontaneous declarations, business records and the like.
Spontaneous Declarations. An example of a spontaneous declaration exception to the hearsay rule is excited utterances or the dying declarations exceptions. Hearsay may not be excluded as spontaneous declarations where the statements result from circumstances which produce nervous excitement in the declarant, preventing reflective thought. The statement under the rules must have been made by the declarant while under the stress of excitement caused by the event or condition, and must relate to the event or condition.
Business Records. Business records must deal with matters regarding the activities of a business and business actions, must have been made within a short time of the matter or action, and must have been made in the ordinary course of business. The latter requirement deals with the method of preparation of the business record.
Hearsay exceptions in the context of civil court proceedings are important to know. Depending on the circumstances of your case, hearsay may be admissible in certain situations.
Federal Rules of Evidence and Hearsay
The Federal Rules of Evidence, applicable in federal courts and most state courts, defines and regulates hearsay under Rule 801. Hearsay, as previously explained, is a statement that was not made in the context of the current proceeding or after the event in question. While the rule effectively disallows all hearsay, it goes on to provide definitions and exceptions. First, it gives a broad definition of statement and then it explains its meaning under rule 801(a) – a declarant is a person who makes the statement. Next and crucially, it excludes certain statements from consideration as hearsay under rule 801(d). It explains that if a witness testifies in a trial or hearing under oath and subject to cross examination about a statement asserted to be true, then that statement is not considered hearsay. Rule 801(e) then addresses opposing party statements, clarifying that if an opposing party makes a statement in their individual or representative capacity, then it is treated as a statement adoptive, which is also not considered hearsay.
Next under Rule 801(b) is an explanation of what constitutes hearsay. Rule 801(c) ends with a list of exceptions to the big rule. Just like under California law, the hearsay exceptions under the Federal Rules of Evidence involve the following: These exceptions for hearsay events are established to allow courts to weigh evidence judiciously when a witness cannot make it to court.
State Court System and Hearsay
In the context of civil proceedings, state courts can have significant procedural differences with regards to the admissibility of the hearsay rule. Hearsay is defined as "an out-of-court statement that is not made in court, offered in court to prove an issue in a case," according to California Rules of Evidence §1200. Because state legislatures and state court judges create the rules for evidence in their courts, the interpretation and application of the hearsay rule can differ wildly between the federal and state courts.
In California, for example, the legislature has included specific definitions in the code for purposes of determining the admissibility of hearsay in state courts. For instance, California Code of Civil Procedure § 1200 provides: "Hearsay evidence is inadmissible except as provided by an established exception to the hearsay rule, stated in law or in the case law decided by the courts of this State . "
State courts may also provide different exceptions to the hearsay rule than federal courts. For example, New Jersey considered several proposed exceptions to the hearsay rule submitted by the Supreme Court in a New Jersey report. One of the proposals, concerning learned treatises—the writings of a learned authority—is found in Federal Rule of Evidence 803(18). New Jersey, however, declined to adopt this exception "because it has been noted that the exception has a limited application and ‘is not a substitute for adequate preparation of witnesses.’"
Thus, it is important to consult the state rules of evidence, which differ not only from the Federal Rules of Evidence but also state-to-state. A good resource for determining the rules for any state court are the Benchbooks located here, provided by the National Center for State Courts (NCSC).
The Practical Use for Litigators
For attorneys, the rules on hearsay are a real trial level issue and often one of the most important aspects of preparing a case. Of course, what are often the most helpful responses to hearsay objections are what would cause the hearsay rules to be overstretched in the first place. However, because trial attorneys often have some leeway with those objections, it is sometimes easier to attack hearsay evidentiary weaknesses from a non-legal perspective. In other words, be prepared for the opposition to try to stretch the hearsay rules. Judge some of the requests there against the common sense of the case at inquiry. If you can make a judge appear like another side of their case is stretching the rules, you might be able to get them ruled out as a result. However, there is also a lesson here in sneak attacks. Even if you plan on objecting to an out of court statement that is presented at the same time you are introducing your own evidence, being sure that that statement is in evidence is going to be important. No attorney wants to be caught off guard by something that they believe should not admissible in a certain matter. Hearsay is one such topic that often catches attorneys off-guard. In civil cases, attorneys have to be prepared for all of the evidence that is coming into play – even the unintentional sources.
Relevant Case Studies on Hearsay in Civil Cases
Examining notable cases provides a useful lesson in the nuances of likely hearsay issues and how the courts have historically ruled on these issues. Landmark civil court cases have involved significant hearsay rulings that are specific enough to clarify when such evidence will or will not be considered hearsay. This section offers an analysis of which pieces of evidence were accepted and why certain communications crossed the line into hearsay.
Shields v. Ilumina
This United States District Court, District of Massachusetts case focused on an attempt by the plaintiff to introduce an expert’s hearing transcript to demonstrate that a license was somehow invalid. The court ruled to exclude the playing of the recorded hearing transcript because the jury may have been confused as to the source of the statements: a purported admission by the defendant as the plaintiff had alleged or as a statement by the plaintiff’s own expert witness as he supposedly testified at the hearing.
Such confusion could have led the jury to accord too much preference to this evidence over other evidence, particularly to discount the hearsay testimony of the defendant as a mere attempt to cover what he had purportedly admitted.
Wilkins v. Khelifa
The plaintiff in this Tennessee district court case was injured when she attempted to leave her work building through the basement stairwell, and she took it upon herself to sue for damages due to fraud and negligence. During discovery, the defendant produced a 2008 Atlanta Journal-Constitution article including statements purportedly made by employees of the State Commission of Georgia Standards of Excellence (the "Commission"). The plaintiff attempted to use the statements of Commission employees regarding safety inspections of the building, which the court excluded as hearsay.
The plaintiff argued for an exception based on the business record hearsay exception. However, the newspaper article was not sufficiently reliable to be considered a business record because it is unreliable for various stated reasons, such as the fact that it lacks circumstantial guarantees of trustworthiness. The plaintiff thus failed to demonstrate that the article was a record within the meaning of the business records exception.
Legion Insurance Co. v. N. AM. Van Lines
The plaintiff brought the case before the U.S. District Court, which had jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. In litigating an insurance coverage dispute, the plaintiff sought deposition testimony from one of the defendant’s adjusters. The defendant objected to the portions of the plaintiff’s questions involving hearsay. The court considered the plaintiff’s motion to compel answers to those questions and overruled the defendant’s objections.
The defendant objected to the introduction of hearsay on the grounds that statements not made by the deponent cannot be considered hearsay. In this case, the court agreed with the plaintiff and determined that the deposition should include pre-hearing communications that are consultative or legal in nature as potentially relevant information.
Conclusion: Civil Litigation and Hearsay
In civil court, hearsay rules can be particularly intricate and technical. Unlike criminal cases, where protections against hearsay are more straightforward, the rules governing what constitutes hearsay and what exceptions may apply are numerous and often highly nuanced. The best way to avoid improperly admitted hearsay evidence at trial is to ensure that parties properly raise the issue when it first comes up during discovery. Recorded statements should be identified as hearsay and the party seeking their admission should be challenged to explain , under the rules and authority, why a particular statement falls within an exception to the hearsay rule and is, therefore, not truly inadmissible at trial. As with all aspects of civil litigation, a strategic approach articulated from the outset of the case through discovery may dictate whether there is a chance to seize a victory down the road at trial.