In our last blog post, we discussed hearsay and why it matters, as well as why it's been in the news so much lately.

While any single blog post will always fail to convey all of the intricacies inherent in hearsay law, it is still worth at least summarizing some of the ways that hearsay can be admissible in a court proceeding, whether because the evidence is reliable enough or the hearing uses more relaxed rules of evidence.

Hearsay: Out-of-Court Statements Used to Prove What They Concern

Legally, the definition of hearsay is usually given as oral testimony that is both:

• Of an out-of-court statement, and
• Is being used to prove the matter asserted.

If there was a trial over whether it rained yesterday, and Jill was testifying, it would be hearsay if she said, “Bob said that it rained yesterday.”

The point of labeling a statement as hearsay – and therefore keeping it out of trial – is that it is unreliable. Not only could the person testifying be misremembering what was said, but there is a more reliable source of information: The speaker, him- or herself.

Forcing that speaker to the witness stand also opens them up to the cross-examination that is so essential in criminal trials.

There Are Around 30 Hearsay Exceptions

Just because a statement was made outside of the courtroom and is being used to prove the matter it asserts, though, does not necessarily end the discussion. Courts have recognized around 30 exceptions to the ban on hearsay. Some of them include:

• Excited utterances: Statements made when the speaker was excited, and therefore less likely to be lying, have been deemed reliable enough to skirt around the ban on hearsay
• Present sense impressions: Statements made in the moment to describe a scene, while the speaker was watching it unfold, tend to be reliable enough to be included in a trial
• Statements against the speaker's interest: When the statement ran against the speaker's interest to such an extent that they would not have said it had they not thought it to be true

These are just some of the most common ways for hearsay to still get into a courtroom and used as evidence in a criminal trial.

Some Hearings Are Not as Strict as Criminal Trials

Those exceptions for hearsay, however, only apply to hearings and official proceedings that ban hearsay. Not all do, though, and congressional impeachment hearings are among them.

For example, while criminal trials put a tight lid on hearsay evidence and try to keep unreliable hearsay from getting into the courtroom, divorce mediations and even small claims court trials let hearsay in without a second thought. In some of these cases, it is because an experienced judge is hearing the evidence, rather than a jury that is likely to be swayed by unreliable evidence. In others, less is at stake so banning hearsay would eliminate lots of evidence and could bog down the proceedings in technicalities.

Joseph D. Lento: Criminal Defense in Philadelphia

Joseph D. Lento is a criminal defense lawyer in Philadelphia who uses the rules of hearsay to help clients defend against a criminal allegation. Contact him online or call his law office at (215) 535-5353.