The Hearsay Problem, Explained Plainly

Almost everybody in a contested matter worries about hearsay and very few can state what it is. The definition is short, it has two parts, and the second part disposes of a great deal of material that people spend effort trying to fit into exceptions it never needed.

The definition, in two parts

A statement made outside this proceeding. By anybody, including the witness themselves on an earlier occasion, and in any form: spoken, written, or conduct intended as an assertion.

Offered to prove what it asserts. This is the part people skip. The question is not whether somebody is repeating something, but whether the repetition is being used to establish that the thing said was true.

Both limbs are required. A statement failing either one is not hearsay, and no exception has to be found for it because the rule does not reach it.

Conduct can be a statement. Where somebody nods, points or signals in answer to a question, the conduct is an assertion and is treated as a statement.

Machine output usually is not. A reading produced by an instrument is not a statement by a person, though the reliability of the instrument becomes the question instead.

Why the rule exists

The speaker cannot be tested. Nobody can ask the absent person what they meant, how they knew, or whether they were being careful, and those are the questions that expose unreliable accounts.

Four risks in particular. Misperception, faulty memory, ambiguity of expression and insincerity. Each is normally probed by questioning, and none can be probed when the speaker is not there.

It is not a rule about reliability. Plenty of hearsay is entirely reliable and plenty of direct testimony is not. The rule is about the ability to test, not about the quality of the material.

Which explains the exceptions. Each exception identifies a circumstance in which the risks are reduced by something other than questioning, such as spontaneity or routine.

And explains the non-hearsay uses. Where the truth of the statement is irrelevant, none of the four risks matters, so the rule has nothing to operate on.

Statements offered for another purpose

To show that words were spoken. Where the issue is whether a threat was made or an offer communicated, the words are the event, and their truth is beside the point.

To show notice or knowledge. A warning given to somebody establishes what they knew, whatever the warning's accuracy, which is one of the most common non-hearsay uses.

To show the effect on the hearer. Why a person acted as they did is explained by what they were told, and the explanation does not depend on the information being correct.

To show the speaker's state of mind. A statement revealing what somebody believed or intended is used for that, and its accuracy about the outside world is irrelevant.

As a verbal act with legal effect. The words of a contract, a notice or a defamatory publication are operative facts rather than assertions about facts.

The main exceptions, grouped

Statements made in the moment. Excited utterances and statements of present sense impression, admitted because there was no time to fabricate.

Statements about the speaker's own condition. Present physical or mental state, and statements made for the purpose of obtaining medical treatment, discussed in statements made for medical treatment.

Records made in the ordinary course. Business records and public records, admitted because routine entries made by people with a duty to be accurate are reliable, as business records and the routine entry sets out.

Statements against the speaker's interest. Admitted because people do not ordinarily say damaging things about themselves without reason, covered in admissions against interest.

Exceptions requiring unavailability. Former testimony, dying declarations and statements against interest by an unavailable speaker, which have a precondition the others do not.

Layers, and how to handle them

Each layer needs its own route. A report recording what a witness said contains two statements: the report and the account inside it, and each must be admissible on its own basis.

This is where documents fail. A business record is admissible as a record; the statement by a member of the public recorded inside it usually is not, which is the problem with police reports.

Identify the layers explicitly. Writing them down in order, with the route for each, converts a vague objection into a specific one and frequently resolves the argument.

One admissible layer is not enough. An argument that a document is a business record does not answer an objection to what somebody said inside it.

Some layers disappear. Where the inner statement is offered for a non-hearsay purpose, only the outer layer needs an exception, which simplifies the problem considerably.

The most useful thing anybody can learn about hearsay is the second limb of the definition. A great deal of material that people treat as a problem is being offered to show that something was said, or that somebody knew something, and neither use engages the rule at all.

The reason for the rule also explains its shape. Every exception describes a circumstance in which the ordinary risks of an untested statement are reduced by something else: spontaneity, routine, self-interest, or an earlier opportunity to question the speaker.

Layered hearsay is where careful analysis pays. Documents recording what people said are extremely common, and establishing that the document is admissible answers only half the objection.

In practice the rule bites hardest on exactly the material parties most want to use: what somebody who is not here said about the thing in dispute. That is the point of it, and the answer is usually to call the person rather than to search for a route around them.

Finally, the exceptions are not a list to be memorized so much as a set of reasons. A statement that fits none of them may still be admitted under a residual provision if the reasons behind the exceptions are satisfied in some other way.