Monday, February 12, 2007



"Objection, your honor! Hearsay!"

How many times have you heard *that* on Law and Order. Or Matlock. Or Aly McBeal. Or whatever courtroom drama you watch. You've heard it so many times, you think you know what it means. Well, I'm here to tell you, you don't. At least not completely.

Hearsay is any out of court statement offered in court to prove the truth of the matter asserted in the statement.

There are at least two important elements here: 1.) that the statement has been uttered out of court, and 2.) that it is being offered to prove the truth of what is asserted in the statement. For example, Billie's out of court statment that "the car was red" is being admitted to prove that the car was actually red. That is hearsay. Hearsay is not allowed.

But don't worry, there are lots of exceptions, starting with things that *seem* like hearsay, but that don't qualify. One type of out of court statement that is *not* hearsay is a verbal act, or a statement that, itself, has legal signifigance. For example, if your Aunt Frieda walks up to you, hands you her diamond brooch and says "here, darling, I'm giving you this brooch as a gift because I'm so proud of you for getting sober" -- the words establishing that the brooch is a gift are legally operative words and are not hearsay.

Another great example of non-hearsay are admissions of a party opponent. Por ejemplo: If I run over a cat and then drive down to the bar and tell the bartender "hey, dude, I totally creamed this cat on my way over here," my statement is an admission and the other side can call the bartender to testify to what I said. It is NOT hearsay.

Then, of course, the true hearsay exceptions: things that technically *are* hearsay, but which are admissible anyway. One is the dying declaration. I love this one. If somebody tries to kill you and you think you are done for (whether or not you actually die) and you say, in your last gasps " was Rico! He wore a diamond! He shot me in the stomach with a pearl-handled revolver!" Those statements can be used in a murder prosecution against Rico, but only if you're not there to testify *yourself* about Rico and the diamond and the revolver, which would be the case if you actually died or if you were still in intensive care at the hospital or in a coma.

Another hearsay exception is the excited utterance -- this is a statement made directly after the incident that inspired it and is admissible based on the theory that things you say in the heat of the moment are probably not lies. Back to my earlier example, if I ran over a cat and immediately jumped out of my car and said "Holy shit! I just killed somebody's cat!" That would be an excited utterance and probably admissible.

Finally, and this one is important, statements offered to show the state of mind of the declarant are admissible exceptions to the hearsay rule. Why is this important? I'll tell you. In the first OJ Simpson trial, the criminal one, the prosecution wanted to introduce evidence that Nicole Simpson had recently told someone that OJ was trying to kill her. "Objection your honor! Hearsay!" Yells the prosecutor. "Objection sustained!" Yells the judge. That evidence was not admitted because it was being offered to prove that OJ *was* trying to kill her.

However, in the subsequent civil trial, the plaintiff's attorney attempted to admit the same evidence, but *this* time, when the defense objected, the prosecution said "Your honor, it goes to the state of mind of the victim." And guess what? Overruled. The statement "OJ is trying to kill me" was admissible to show that Nicole was afraid of OJ, and was just a tiny bit of circumstantial evidence against OJ. But the big thing about this is, once it comes in, regardless of *why* it came in, it finds itself in the minds of the jury members. And will *they* remember when the time comes not to use that statement as evidence that OJ actually did it? Maybe not. Maybe that's why he was found liable for her death in the civil case and not-guilty in the criminal case... who knows.


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