What is Hearsay?

HearsayToday we are going to talk about hearsay. The legal term, “hearsay,” is one of the most misunderstood legal terms in the law. Last weekend I had a client in my office that I was preparing to testify for a trial that was coming up. I asked the client a couple of questions and the client said that the Court would not allow me to ask that question because it was hearsay. I found myself explaining the term to the client and realize that most people do not really understand the legal meaning and implications of the term “hearsay.” So let me explain what hearsay is and how it could impact your criminal case.

Definition of Hearsay

The definition of hearsay law students are given in law school is as follows: An out-of-court statement being offered for the truth of the matter asserted. As a general rule, hearsay evidence is inadmissible in court. Like most other things in the law, there are exceptions to this rule. So unless there’s an exception, hearsay is inadmissible. If a statement is hearsay, it does not matter if the statement is oral or written. The reason behind not allowing hearsay evidence at trial is to prevent out-of-court, secondhand unreliable statements, to be used in court given their unreliability. In addition to the inherent unreliability of hearsay evidence, it is unfair to the party against whom this statement is being used because the party is unable to cross-examine and challenge the out-of-court statement that is being used against them.

An example of a hearsay statement would be the prosecutor offering the testimony of John who testifies that Jim told him that he shot Joe. If the state is offering the testimony of John to prove that Jim shot Joe, that would be hearsay because it’s an out-of-court statement that’s being offered to prove that Jim shot Joe. But if the state is offering the testimony of John to prove that Jim was alive when he made the statement, then that may not be considered hearsay because it’s not being offered to prove that Jim shot Joe.

Double hearsay is an out-of-court statement that contains another out-of-court statement. An example would be John testifying that Rob told him that Jim told him that he shot Joe. Because the double hearsay statement is so far removed from the source of the statement, it is so unreliable that it would never be allowed in court

Exceptions to Hearsay

Even though the following out-of-court statements fit the definition of hearsay, they are admissible as exceptions to the general rule that hearsay statements are inadmissible. The following examples apply to situations in which the declarant, the person making the hearsay statement, is unavailable to appear in court:

Declaration Against Interests – if the statement would only incriminate the person making the statement that it would be assumed that unless it was true the witness would not have said it.

Dying Declaration – a person’s last words before dying may be allowed at trial.

The following exceptions to the hearsay rule apply even when the declarant, the person making the statement, is available to testify at trial

Excited Utterance – This would be a statement that’s made in response to a shocking or startling event.

Present Sense Impression – This is a statement that is made spontaneously in response to, or immediately following an event.

Statement of Present State of Mind – This is a statement made by the declarant about their state of mind at the time of the event. An example would be John testifying that he heard Jim say that he’s going to kill Joe right before he pulled the trigger. The statement could be used by the prosecutor to prove that Jim had the requisite intent to Murder Joe when he pulled the trigger.

The following statements are specifically excluded from the hearsay rule.

Admission by a Party Opponent – If the statement that the declarant made was his own statement made in an individual capacity, or the statement was the adoption of a belief that was true, and that the party had the authority to make that statement, or was made by a co-conspirator with whom the statement is being offered against, then the statement will be allowed into evidence.

Prior Inconsistent Statements of a Witness – If the person who made the statement is testifying in court and subject to cross-examination, and a witness testifies that they made a statement that was not consistent with what they testified to at trial, then that hearsay statement can come into evidence.

This article is just a basic explanation of hearsay and it’s exceptions and exclusions. I can try to explain hearsay and exceptions concerning documents, but we will leave that for another day. It is critical that a litigator has a thorough understanding of hearsay and the Rules of Evidence. A criminal defense attorney that does not understand hearsay will be doing a tremendous disservice to their client by allowing admissible evidence to be heard by the trier of fact.

James Dimeas is a nationally-recognized, award-winning, criminal defense attorney with over 26 years of experience handling criminal cases in all of the courthouses in Chicago, Cook County, DuPage County, Kane County, and Lake County. James Dimeas was named a “Best DUI Attorney.” Recently, the American Society of Legal Advocates named James Dimeas a “Top 100 Criminal Defense Lawyer in the State of Illinois For the Year 2018 and 2019.” Expertise named James Dimeas a “Best Criminal Defense Lawyer in Chicago.” The American Institute of Criminal Law Attorneys recognized James Dimeas as a “10 Best Attorney for Client Satisfaction.” The National Trial Lawyers named James Dimeas a “Top 10 Criminal Defense Trial Lawyer.” Attorney and Practice Magazine gave James Dimeas the “Top 10 Criminal Defense Attorney Award for Illinois.” The National Academy of Criminal Defense Attorneys gave James Dimeas the “Top 10 Attorney Award for the State of Illinois.” James Dimeas is rated “10”, “Superb” by AVVO, the highest rating possible for any criminal defense lawyer in the United States.

If you are being charged in a criminal case, you can contact James Dimeas anytime for a free and confidential consultation. You can always talk to James Dimeas personally by calling him at 847-807-7405.

Additional Blogs:

I Have a Criminal Case. Do I Need a Lawyer? by James G. Dimeas, Chicago Criminal Lawyer Blog, March 10, 2019.

What Happens at a Preliminary Hearing in Illinois?, by James G. Dimeas, Chicago Criminal Lawyer Blog, May 23, 2017.