In my last column, I discussed the hearsay rule whereby, generally, out-of-court statements offered to prove the truth of the matter asserted are hearsay, and generally inadmissible as evidence in court.
This generally includes written statements, newspaper articles, affidavits and testimony by a witness as to what another person said out of court, if the statements are offered to prove the truth of what is being asserted.
But many types of out-of-court statements are either not hearsay in the technical sense or exceptions to hearsay, which are admissible in court even though made out of court.
Take for instance out-of-court statements that are offered, not for the truth of the matter asserted, but to show that they were said, as notice of that fact.
“Say what?” you may ask.
Here’s what I’m talking about.
Several years ago I tried a case to a jury in which I was defending a company on a claim of unlawful employment discrimination. A former employee alleged he was terminated in retaliation for pursuing a worker’s compensation claim.
Our defense was that we did terminate his employment but that his worker’s compensation claim had absolutely nothing to do with it. Instead, he was terminated for a pattern of poor job performance, undependability, misuse of company property, lack of competence and drug use on the job.
Thus the issue was, why did we truly terminate him? Because of his workers comp claim or these other reasons.
On the witness stand, I was examining one of the owners of the company about the plaintiff’s history of poor job performance. I then asked him if they had heard from other workers that the plaintiff was using drugs on the job.
The plaintiff’s lawyer jumped out of his chair and exclaimed: “Objection, hearsay!”
The judge exclaimed with equal fervency and with a glaring stare at me: “Sustained!”
Noting that the judge was mad enough at me to hit me in the head with his gavel, I asked in the calmest, nicest way I could, “Your honor, may we approach the bench?”
Fortunately, he said OK.
And at the bench, I explained to the judge that this was not hearsay, that we weren’t offering it to prove the truth of the matter asserted, that the plaintiff was using drugs on the job, but simply to show notice, that we received information that he was using drugs, which, true or not, was relevant to why they decided to fire him, the key issue in the case.
The judge looked at me, then the other lawyer, and said: “Oh, OK, overruled.”
And I went on with my line of questioning about the rumors of the plaintiff’s drug use on the job.
The same is true of written contracts. They are not hearsay. What is said in the contract is relevant in and of itself, and contracts being sued upon are not offered for the truth of what’s asserted in them, but to show what the parties said, represented, and agreed to. In they come.
An exception to hearsay: admissions by a party. Anything a party to a case says out of court comes in as an exception to hearsay, whether written or verbal statements. And so it’s true: “Anything you say can and will be used against you in a court of law.”
Another exception: prior inconsistent statements. If someone testifies to certain facts, prior, out-of-court statements inconsistent with their testimony come in as prior inconsistent statements.
Another exception to the hearsay rule: business records. Out-of-court written statements, like medical records, statements of account, receipts, court records and records of any other type of regular business activity can be admitted into evidence if a qualified party with knowledge testifies that they represent a regularly conducted activity, generated at or near the time of the events depicted, in the ordinary course of business, under circumstances that the court believes rise to the level of acceptable reliability.
Another exception: present-sense impression and state of mind. Out-of-court statements made by someone about what they are sensing or feeling at the time the statement is made, or statements of their then-existing state of mind, come in as an exception to hearsay. Thus, when someone comes to court and testifies to something said out of court by someone else, such as: “My leg hurts;” “I’m cold;” “I’m mad as heck;” “I think I need an ambulance;” “I can’t see” or “I really, really have to go to the bathroom!” are likely to be ruled as testimony as to a present sense impression or then existing state of mind, and accordingly, exceptions to the hearsay rule.
There are a number of other exceptions to the hearsay rule, but these are some of the most prevalent.
The rules of evidence are like the rules of a chess match that attorneys play in a court of law. And none is more critical to what information is permitted to be considered by a jury than the hearsay rule, and its many nuances, applications and exceptions.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org.