The hearsay rule provides that out-of-court statements cannot be admitted into evidence in a court proceeding to prove the matter asserted.
When I was a college kid, aspiring to go to law school, long long ago, I worked for a law firm that did almost exclusively litigation.
What a great experience that was.
Once I was helping one of the lawyers in the firm with the plethora of grunt work that comes with preparing a lawsuit for trial, when I found something in a recent newspaper that could help our case.
“It’s hearsay,” the lawyer said, dismissively. “We can’t use it.”
But it’s in the newspaper, for crying out loud, I thought to myself.
As I would later learn in my legal education, he was absolutely right. What was in that newspaper was an out-of-court statement that would be offered to prove the truth of the matter asserted. Hearsay. Inadmissible. Basic stuff.
Now there are many, many exceptions to the hearsay rule, and even exceptions to some of the exceptions. But the basic concept of hearsay being inadmissible in evidence stands firmly rooted in American jurisprudence.
Many a time over the years, I’ve had clients say they could get me signed statements of people with favorable facts for a court appearance. Can’t use ’em. Hearsay.
Well then, what if we get them notarized, so they’re made under oath. Still hearsay, statements made out of court offered for the truth of the matter asserted – even if there’s a notary seal at the bottom.
Well, what about a police report? It’s an out-of-court statement, and if it’s offered to prove the truth of what’s in it, it’s hearsay.
Now at first blush, this may seem a bit ridiculous, that written statements that are sworn and notarized and official police reports cannot be admitted in evidence in a court of law to prove the matters asserted because they are out of court, hearsay statements. But that’s the way it is.
That’s because the person who is actually asserting the truth of the matter (or lack thereof) must be present to testify in court, and subject to cross-examination by the other side.
You can’t cross examine a written statement, even if it’s notarized, a police report or a newspaper article. And if the party against which the evidence is offered can’t confront and cross-examine the person asserting it, then it doesn’t come in.
Because the critical importance of confrontation and cross-examination of witnesses cannot be overlooked. It’s even in the Constitution, for goodness sake.
Many a time in a court of law, I’ve seen a witness come in and testify to facts with great effect, only to be rendered after a thorough and well-planned cross-examination to be wholly lacking in credibility and effect.
The types of matters that can be and often are exposed by thorough cross-examination of a witness can include bias, prior criminality affecting credibility, prior inconsistencies, lack of perception, bad character, an interest in the outcome of the proceeding, and just overall lack of credibility when confronted by the other side.
These factors can be so critical to the fairness of any proceeding that our rules require that the person bringing the information to the courtroom actually be present and subject to cross-examination.
Otherwise, it’s hearsay.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.