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DANA B. TASCHNER

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Hearsay

 
 

Hearsay in its most general and oldest meaning is an out of court statement offered to establish the facts asserted in that statement.

Generally in common law courts the "hearsay rule" applies, which says that a trier of fact (juror or judge) cannot be informed of a hearsay statement unless it meets certain strict requirements. However, the rules for admissibility are more relaxed in court systems based on the civil law system. In the civil law system, the courts, whether consisting only of judges or featuring a jury, have wide latitude to appreciate the evidence brought before them.

There are two common misconceptions concerning the hearsay rule. The first is that it is commonly thought of within the context of "who said what to whom,", i.e., repeating what somebody else said. However, it also applies to written documents and electronic records. Even written documents made under oath, such as an affidavit or notarized statement, are subject to the 'hearsay rule'.

The second misconception is that hearsay is often thought of as a situation where the person testifying at trial repeats what somebody else said or wrote. This is only partially correct. The fact that someone repeats what someone else says or wrote does not make a statement 'hearsay' in and of itself. What makes a statement hearsay is not the statement itself but for what purpose it is being offered in the proceeding. If the purpose for which the out of court statement is being offered depends on the statement being true, then it is hearsay. If the purpose for which the out of court statement is being offered does not depend on the statement being true, then it is not hearsay.

For example, a police officer hears cries of 'help, He's going to kill me! Help!' from inside a home. Believing that there is a crime in progress,the officer kicks the front door down and enters the home to discover the perpetrator/homeowner assaulting a partially a victim. The victim is crying and visibly shaking. The perpetrator is charged with attempted murder. The perpetrator/homeowner proclaims his innocence and demands a trial. The perpetrator also sues the officer for invading his home in a separate trial. The officer asserts a genuine belief a crime was occurring and thus that the officer had a good reason to enter the home.

In the first trial, where the issue is whether an attempted murder in fact occurred, the officer is asked to repeat the victim's cries for help. The statements would be hearsay. The officer is being asked to repeat the victim's statements to prove an attempted murder in fact occurred. That assertion depends on the victim's statements actually being true.

In the second trial, however, the officer is not trying to argue that a murder was in fact about to take place. The officer is merely asserting that a genuine belief that a murder was about to take place. The officer repeats the victim's statements to show why the officer had a genuine belief. In that case, the statement is not hearsay. Whether the victim was about to be murdered does not matter, only that the officer genuinely believed a crime was occurring.

The fact that a statement is hearsay, however, does not mean that it is inadmissible in court. While hearsay is generally inadmissible as evidence in common law legal proceedings such as litigation there are many exceptions, some (but far from all) of which apply only when the original speaker (known as the declarant) is unavailable.

Many exceptions are listed below. As an exercise, the reader may wish to see if there is a 'hearsay exception' to the police officer scenario above.

  • dying utterances and other statements under belief of impending death : often depicted in movies; the police officer asks the person on his deathbed, "Who did it" and the victim replies, "The butler did it".
  • declarations against interest : the declarant makes a statement, such as confessing to a crime, that goes so clearly against the declarant's own interest that a reasonable person would not make such an admission unless the person believed it was true.
  • the business records exception : business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the evidence is introduced into evidence. In this usage, business records has a very broad meaning and includes police records, or records of non-profit organizations. In the United States Federal Rules of Evidence, separate exceptions are made for public records , family records , and records in ancient documents of established authenticity. When regular or public records are kept, the absence of such records may also be used as admissible hearsay evidence.
  • excited utterances relating to startling events or condition made while the declarant was under the stress of excitement caused by the event or condition. This is the exception that may apply to the 'police officer' scenario listed above. The victim's cries of help were made under the stress of a startling event, and the victim is still under the stress of the event, as is evidenced by the victim's crying and visible shaking. An excited utterance does not have to be made at the same time of the startling event. A statement made a minutes, hours or even days after the startling event can be excited utterances, so long as the declarant is still under the stress of the startling event. However, the more time that elapses between a startling event and the declarant's statement, the more the statements will be looked upon with disfavor.
  • prior testimony : if the testimony was given under oath and the party against whom the testimony is being proffered was present and had the opportunity to cross examine the witness at that time. Often used to enter depositions into the court record at trial.

Another common exception is statments made in the course of medical treatment, i.e., statements made by a patient to a medical professional.

Probably the most important category of exceptions to the inadmissibility of out-of-court statements concerns evidence of statements made out of court by a party to the proceedings; these statements are normally admissible into evidence against that party.

In some jurisdictions such as Canada the limited exceptions format to the rule have been replaced by a more general theory of exceptions to the hearsay rule that allows courts to decide when documents, testimony or other evidentiary proof can be used that might not otherwise be considered. [more can be written about this].

Today the hearsay rule has developed into a complex set of evidentiary rules of admissibility that are used to prevent various types of statements and documents from being entered into evidence in various types of court proceedings, though they may be allowed in other types of alternative dispute resolution. Generally speaking hearsay is a concept that developed in the common law legal tradition in the context of the adversarial system of decision making.

One rationale for the hearsay rule is that the credibility of the person being quoted (the out-of-court "declarant") or the declarant's observations cannot be cross-examined by the person against whom the testimony is being proffered. In this connection, the hearsay rule helps to protect the right of a criminal defendant (guaranteed under the sixth amendment to the U.S. Constitution) "to be confronted with witnesses against him." Another rationale, related to the first, is that hearsay statements are unreliable because the person repeating the declarant's statement may not do so accurately.

The underlying rationale for many of the hearsay exceptions is that the circumstances of a particular statement make them reliable enought to be heard by a trier of fact. Statements made during the course of medical treatment, for example, are considered reliable because patients typically have little reason to lie to a doctor while they are being treated, and will generally be accurate in describing their ailments.

This, of course, is not always true. Patients do sometimes lie to their doctors (to get painkillers they are not entitled to, for example). Hearsay exceptions do not mandate that a trier of fact accept the hearsay statement as true. Hearsay exceptions only mean that the trier of fact (a judge or jury) will be informed of the hearsay statement and get to consider it when they make their decision in the case. They are free to disregard a hearsay statement if they do not believe it. The hearsay rule only controls what out of court statements a trier of fact gets to consider in deciding a case, not how they consider the out of court statements.


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