What's The Real Deal With Hearsay ?

Posted By Michael R. Varble || 9-Apr-2014

In today's blog post, I discuss the hearsay rule. What is hearsay, why does it have a bad reputation, why do we attorneys always object to it. If you are interested in this issue or want to know more about how it impacts your case, read today's blog for further information.

Hearsay. We all know the word. You hear everyone talk about it. What does it really mean and why do we attorneys have such an issue with hearsay ? Hearsay is defined as a statement, other than one made by the declarant (the person making the statement) while testifying at a hearing or trial, which is offered into evidence to prove the truth of the matter asserted. What the @#$% does that mean ? It means that you cannot get on the witness stand and say that someone else said A, B, C, D and that A, B, C, and D are true, unless there is an exception to the hearsay rule.

The rule prohibiting hearsay was developed to insure that the declarant had the opportunity to perceive the event, had the memory necessary to recall the event, and had the ability to accurately retell the event. This way the account of the event to which the witness is testifying is coming from a person that has first had (otherwise known as personal) knowledge of the event. The witness can then be subjected to cross-examination and the accuracy of his or her memory can be tested. If the person testifying only heard about an event, they did not actually see the event and there is less ability for counsel to test the accuracy of the witness' memory and, as a result, the accuracy of the event on cross-examination.

There are certain exceptions to the hearsay rule as well. One of the main exceptions to hearsay are admissions. Statements can also be offered for a reason other than to prove the truth of what is being said in the statement. The statement could be offered to show the witness' state of mind at the time of the statement for example. There are also exceptions to the hearsay rule and the exceptions generally are permitted because the statements has some degree of trustworthiness because of the circumstances under which they are made. Example of hearsay exceptions are business records - because generally accurate business records need to be kept to run a business in a proper manner, statements for the purposes of medical treatment because the rationale is that generally people are not going to lie to their doctor if they need to provide information to acquire appropriate medical care, and yet another is what is called an excited utterance. There are several other exceptions, but these are some of the more significant hearsay exceptions that we attorneys use on a regular basis. The key questions in deciding a hearsay question, after it is established that a statement is hearsay, is what the purpose is for offering the statement.

Admissions, unlike hearsay exceptions, only need to be statements made by a party about the subject matter in litigation that is against the other parties' interest. There is no requirement, like the hearsay exceptions, that the statement was made under circumstances that seem to make the statement trustworthy. The party offering the admission also does not need to have personal knowledge of whether the statement they are offering is true. Admissions are probably allowed because the witness to which the statement is attributed is the other party and they can and often will take the witness stand and be subject to cross-examination. Conduct can also have a the affect of being an admission. What do I mean by this ? Refusing to take a breath test if you are stopped for a DWI is one example, destroying evidence, trying to procure false testimony, engaging in a cover up are all acts that have a testimonial meaning. The meaning is that the person doing this is aware they are guilty and their actions show that they are aware they are guilty.

These issues are just a few of the evidentiary issues that you or someone you love could be faced with if you are injured in an accident. These issues, while they may at first glance seem simple, can become very complicated very quickly. This is one of the many reasons that I will always encourage people to seek legal advice and, at a minimum, schedule a consultation with an attorney before you begin to take action in a legal matter.

So I will close like I normally do and tell all our readers that I hope you do not need to call us or be called the plaintiff. I know that will not happen or attorneys, police, courts and insurance companies will be out of business and that is certainly unlikely. So if you or someone you love is injured in an accident, give us a call at 1.888.900.6204 for a free consultation. Our consultations are always free of charge and we are available for evening and weekend appointments if you require. We you retain our firm you will get over 150 combined years of litigation experience and we will fight for you.

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