Hearsay is a term many of us have heard, but few truly understand. Often, clients come to my office, describing their situations and claiming “it’s all hearsay.” However, they rarely use the term correctly. To clear up this common misconception and because it’s an interesting concept with fascinating legal implications, I aim to explain what hearsay is and isn’t.
What is Hearsay?
According to Rule 801 of the Arizona Rules of Evidence:
“Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
Rule 802 further states that “Hearsay is not admissible unless any of the following provides otherwise: an applicable constitutional provision or statute, the rules of evidence, or other rules prescribed by the Supreme Court.”
Understanding hearsay becomes easier when you consider it’s about the ease of refuting evidence. Our trials emphasize live witness testimony. This means the witness should have firsthand knowledge of what they testify about. If a person claims something is true because someone else told them, our system demands that the original person testify in court.
For example:
- If a witness testifies that the car in question was red because they saw it themselves, that’s admissible.
- However, if they testify that Johnny told them the car was red, that’s hearsay and generally not allowed to establish the car’s color.
Why is Hearsay Confusing?
Perhaps you are starting to appreciate why the concept of hearsay is so confusing. The definition is not exactly straightforward. I find the way to make understanding hearsay easier is to consider that it is about the ease with which a person can refute the evidence. For better or worse, our trials put an emphasis on live witness testimony. The prototypical trial involves putting living, breathing people on the stand to testify and share what they have to say. Then the other side gets to “confront” the witness and ask questions designed to examine the reliability of the person’s testimony. In order for this process to work, the witness should have firsthand knowledge about what they are testifying. If a person tries to say that something is true because someone else told it to them, our system demands that that some other person come to court to share what they know. Generally, we do not allow for surrogate testimony, the testimony by one person about the knowledge of another.
When is Hearsay Allowed?
Hearsay is allowed in specific circumstances outlined in Rule 801 and Rule 802, including:
- Inconsistent Statements: Statements that are inconsistent with the witness’s testimony.
- Consistent Statements: Statements that are consistent with the witness’s testimony and rebut claims of recent fabrication.
- Identifications: Statements identifying a person perceived earlier.
Common Exceptions to Hearsay Rules
Besides exclusions, there are exceptions where hearsay is admissible, found in Rules 803 and 804:
- Present Sense Impression: Statements describing an event as it happens (e.g., “I am really hungry”).
- Excited Utterance: Statements made under the stress of excitement (e.g., “He just crashed into my car!”).
- Medical Treatment: Statements made for medical diagnosis or treatment (e.g., “I was in a car crash, and my neck is sore”).
These exceptions are considered reliable because the circumstances under which they are made reduce the likelihood of misrepresentation. For instance, present sense impressions are made spontaneously, often leaving little time for fabrication. Similarly, excited utterances are made under the stress of excitement, where the declarant’s focus on the startling event reduces the chance of concocted statements. Statements made for medical treatment are considered reliable because patients usually have a strong incentive to tell the truth to receive appropriate care.
The Importance of Legal Guidance
The rules of hearsay and evidence are complex and can significantly impact a case. In my 12 years as a criminal defense attorney, I’ve handled numerous cases where hearsay evidence played a pivotal role. It’s crucial to understand how these rules can affect your ability to present a defense.
Navigating the legal system alone can be daunting. That’s why having an experienced criminal defense attorney, who understands the nuances of hearsay, is crucial. If you or your child is facing criminal charges, consult with a criminal defense attorney who knows how the rules of evidence will affect your case. Contact us today to set up a consultation and discuss how we can help you.
Conclusion
The rules about hearsay, and the rules of evidence in general, are not straightforward. Besides the text of the rules, there are cases that interpret what the text actually means. For anyone navigating the legal system, the rules of evidence are but one of many things that need to be understood and cared for. Fortunately, there are people who make a living from understanding these things. They are called trial lawyers. If you or someone you know is facing a legal matter, you need to consult with an attorney. They know things you do not even realize you do not know. Contact us today to set up a consultation to discuss your needs and how we can help you.
