If you have watched any movie or TV series about attorneys, you have heard the faux actor lawyers object to something as being hearsay. But what does that mean?
First, hearsay is an out of court statement. A statement may be something that someone said, but it could also be a writing like a letter, email, newspaper article, blog post, or diary note. Sometimes a statement by a party in the lawsuit, even though it is made out of court, is not hearsay because it is an admission of a party. Statements by witnesses should always be examined as potential hearsay.
Second, such out of court statement has to be offered in court. This may be through testimony – “Johnny told me that he was 50 feet away and saw that the light was red”. A document might be offered as an exhibit. A witness may testify about the content of a document during a trial. All of these are offers in court.
Third, the out of court statement must be offered for the truth of the matter asserted. This is the hardest part. If the statement about Johnny above is designed to show that the light was red, it is being offered to prove the truth of the matter asserted. If, on the other hand, it is being offered for some other purpose – to show motive or intent for example, it might not be hearsay.
Try your hand at these examples:
In a contract case where the intent of the parties is at issue in determining what the contract means, the defendant testifies that “I spoke with their consultant and he told me that they had a bad experience with a similar contract before and wanted to make sure that this one is iron clad.”
Hearsay?
In a sexual harassment case, a coworker of the plaintiff employee testifies “Her Aunt Margaret told me that she was tight on cash and was planning to come into money soon.”
Hearsay?