Lamson, Dugan and Murray, LLP, Attorneys at Law

Offering An Out of Court Statement? Hearsay Rule Simplified

Posted in Cross Examination, Direct/Redirect Examination, Trial

Everyone, it seems, has heard of the word “hearsay.”  Those of you lucky enough to be non-lawyers probably associate the word as meaning “something someone else said” or maybe even “gossip.”  In fact, one on-line dictionary simply defines it as “information that you have heard without having any proof that it is true.”  Well, in the law, the definition of hearsay is provided by the rules of evidence.

From that standpoint, hearsay is defined, under the federal rules and every jurisdiction in which I have practiced, as “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.”  Put a different way, hearsay is an out of court statement offered for the truth of the matter asserted.  There are numerous exceptions to the rule prohibiting the admission of hearsay evidence (though exceptions and exclusions are different concepts.  The law makes some things simply “not hearsay” rather than excepting something that is hearsay from the rule prohibiting it). 

Lawyers (and yes, even Judges) often struggle with the rule and how to apply those numerous “exceptions.”  But there is often an easy around the struggle.  The first question you need to ask when eliciting an out of court statement is why you are offering the statement.  If you are not offering the statement as proof that what was said is true then you do not have hearsay and the statement may be admitted.  Start with that and you could save yourself a lot of headaches and time deciphering one of those 38 exceptions.       

Example: 

Mike said he was only gone for a minute.

If you are offering this statement to show that Mike really was only away for a minute then you are offering it for its truth and you may have hearsay problems.  If you are offering the statement simply to show that Mike was able to speak then it does not matter what he said or whether it is true.  This is not hearsay.  But remember; if you say you are not offering the statement for its truth, you cannot then argue that the statement was true in your closing argument.

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