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Understanding Hearsay

Crime dramas and movies about law often provides clients with a misunderstanding about the word hearsay. As a result, many clients make assumptions about their case, their actions, or the actions of others based on their perceived notion of the word "hearsay". Instead of discussing the situation with an attorney, they draw their own conclusions about the admissibility of certain evidence.

The first point to understand is that what you say matters. Always. Most people seem to agree that statements made over email may constitute an enforceable contract. But many people believe that statements they made on Twitter, Facebook or to their buddy over drinks are not admissible in court and can’t be used against them. This is a bad assumption and can get people in trouble.

Hearsay is a complex legal term that easily consumes a month of law school education in evidence. Nevertheless, its prevalence leads many individuals to wonder what it really means. Below is a brief explanation along with examples that demonstrate why people should stop chalking up their comments to “hearsay.”

Hearsay is an out-of-court statement made in court for the truth of the matter asserted. This means that out-of-court statements may be admitted in situations in which the truth of the statement does not matter.

Example #1: A man runs into police department with a gun and shouts, “I have a gun, I am going to kill everyone.” Before he gets a chance to pull the trigger, an officer shoots him. It turns out that the gun was not loaded and the man had no intention to kill everyone. Is his statement hearsay? No.

In this case, it is irrelevant that the man’s gun was not loaded and that he wasn’t going to kill anyone. The judge and jury don’t care whether the man’s words were true. What matters is that the effect of the man’s words upon the police officers led them to believe their lives were in danger. Since the truth doesn’t matter, this statement is NOT hearsay and is admissible.

The purpose behind the hearsay rule is to ensure that evidence presented in court is truthful and reliable. In other words, hearsay is presumed unreliable. The exceptions to hearsay generally apply to situations in which common sense dictates that the statement is most likely reliable. Hearsay exceptions largely rely on the public’s beliefs as to the truthfulness of people. It is an example of our society’s role in crafting legal doctrine.

Example #2: A man sells his car washing business and promises not to compete within one year. The buyer agrees to make monthly installment payments. Six months later, the seller posts on Facebook, “I’m excited to announce I’m opening a brand new car wash, two blocks from the old location!” The buyer stops making payments and claims a breach of the Sales Agreement. Is the seller’s Facebook statement admissible in court? Yes.

Here, the truth of the statement matters. This is hearsay if raised in court and used to prove that the seller breached the Sales Agreement. But, it meets an exception because it is considered a statement against interest. As discussed above, the law assumes that a person would not make a statement falsely if that statement is harmful to him or herself. For that reason, this statement could be used against the speaker as evidence in court even if he didn’t really mean it.

These are just two of many examples of statements that can be used in court. The important take-away is not to assume that anything is hearsay. Assume that what you say matters and can be used against you.

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