Hearsay is an out of court statement that is offered at trial by someone other than the person who made the statement. Such testimony is prohibited when it seeks to establish the truth of the statement’s contents. That may sound confusing so here is an example.
Let’s say you witnessed a crime and you told me what you saw and who did the crime. You would make a great witness at trial. But what if you weren’t called as a witness? Maybe you’ve been convicted of perjury and the prosecution doesn’t think the jury would believe you. So, they call me. I didn’t see the event. I know what I know simple from what you’ve told me. I shouldn’t be allowed to say the person on trial did the act because you told me you saw it and that they did the deed. The major reason for this is that the accused has the right to cross examine the veracity of the witnesses offered against him which they cannot do under this scenario. Now, there are scenarios when such testimony is allowed for limited purposes and that can be discussed later.
The law has created a series of exclusion and exceptions to the hearsay rules. What I am calling an exclusion is a type of statement that, by legal definition, is not considered to be hearsay. An exception is a statement that is legally defined to be hearsay but is permitted because such statements are historically deemed to be reliable.
One exclusion is the prior statement made by a witness. This is straight forward. The witness said something in another proceeding that is inconsistent with what they are saying in this proceeding. That out of court statement was taken under oath, recorded and the witness was cross examined. The fact that the prior statement was said is easily provable.
A second exclusion is a party admission made by the party or their agent. The underlying rational is that the statement is purported to be made by a party to the proceeding that is contrary to their current position. If that party wants to challenge the veracity of the claim, they are allowed to testify. In criminal cases you see this occur with the playing of a recorded confession of the accused or statements made by co-conspirators during the conspiracy.
Things Said And Done
A third exclusion are “things said and done”. Here, it is the fact that the statement was made or that an action was taken in response to the statement that is admissible- not the truth of the statement itself.
The most common exception to the hearsay rule that you will encounter in a criminal case is the “excited utterance.” In this situation someone blurts out a statement during the stress of the moment. Anyone who hears the statement may testify about it. For example “please don’t shoot me James” shouted moments before gunfire may be used against James at his murder trial. The assumption is that people will not make up things to say under the intense pressure of a significant event.