← The hardest concepts in United States law
In one breath
Hearsay is a statement made outside the current proceeding that is offered to prove that what it asserts is true. It is generally inadmissible, because its maker was not under oath and cannot be cross-examined before the fact-finder, unless a rule or an exception lets it in.
The picture
The telephone game
In the children’s game of telephone a message is whispered from one player to the next. If you want to know whether the first player really saw a cat on the roof, asking the last player is hopeless: the first player’s eyes, memory, honesty and wording have been filtered through others, and none of them can be tested now. Hearsay worries a court in just this way. When a witness repeats what someone else said and the point is that the cat was on the roof, the jury cannot question the person who claimed to have seen it.
Now suppose the point is not whether the cat was on the roof but whether the message was ever whispered at all, or that it was heard. Then the first player’s accuracy does not matter, and the last player can simply report what reached her. The same words are hearsay when offered to prove they are true and not hearsay when offered for another purpose. Some messages are also treated as trustworthy enough to pass without a test, such as a cry blurted out in the shock of a crash.
Where the picture stops working
In the game every link can be asked. In a courtroom the witness who repeats the statement can be cross-examined about repeating it, but the original speaker may be absent or dead. And the exceptions rest on a legal judgment about reliability and necessity, not on anything the game could test.
How it really works
- 1Identify the statement: any assertion by a person, spoken, written or made by assertive conduct, that was made outside the current trial or hearing.
- 2Ask what the statement is offered to prove. If the proponent needs it to be true, it is potentially hearsay. If it matters only that it was said, as with a threat, a warning, a promise or evidence of what someone knew, it is not offered for its truth.
- 3Check whether the rules define the statement as not hearsay. Under the Federal Rules of Evidence, a statement made by an opposing party and offered against that party is defined as not hearsay.
- 4If it is hearsay, look for an exception. The usual ones are present sense impression, excited utterance, a then-existing state of mind, statements made for medical diagnosis or treatment, records of regularly conducted activity and statements against the speaker’s interest.
- 5Remember the separate constitutional layer. In a criminal case the Confrontation Clause limits the use of testimonial statements even where a hearsay exception would allow them (Crawford v. Washington).
Why people get it wrong
- Treating every out-of-court statement as hearsay. If it is not offered for its truth, the hearsay rule is not engaged.
- Treating unreliability as the test. Hearsay is defined by how the statement is used, so an unreliable statement offered for a non-truth purpose is not hearsay.
- Forgetting the opposing-party rule. A party’s own statement, offered against that party, comes in through whoever heard it.
- Assuming an exception ends the inquiry. It gets past the hearsay objection only; relevance, authentication, privilege and the Confrontation Clause remain.
- Missing layers. A record repeating what a stranger told the clerk needs a way in for each layer.
A worked example
The facts are invented
Lena sues Harbor Market after slipping on oil near the door. A witness, Gary, wants to testify that a cashier called out, “Mind the oil by the door,” twenty minutes before Lena fell. If Lena offers this to show that oil was on the floor, the words are being used for their truth, which makes them hearsay unless a rule lets them in.
There are three ways in. First, the cashier’s remark may be admitted for a different purpose: to show that the market’s staff knew of the oil, which has nothing to do with whether the words were true. Second, the cashier was the market’s employee speaking on a matter within the job, and the rules treat such a statement, offered against the employer, as an opposing party’s statement. Third, a remark describing a condition while the speaker is looking at it may qualify as a present sense impression.
Try it
In a suit for breach of a delivery contract, a witness testifies that the seller’s manager told her on the phone, “We will ship on Friday.” The buyer offers it to show that the promise was made. Is the statement hearsay?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Federal Rules of Evidence, rules 801 to 807
- Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892)
- Crawford v. Washington, 541 U.S. 36 (2004)
Where to go next
More hard concepts in United States law
- Mens rea and the Model Penal Code culpability levels (Criminal law)
- Future interests (Property law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. United States law is made in fifty states and in the federal system, and the rules differ between them. Each page states the usual formulation of the rule and names landmark decisions; your own state, circuit or course may use different wording. Check the primary sources before relying on any rule.