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"Hearsay" is one of the most famous words of legalese, although to some extent it is being replaced on television with "he said, she said." What exactly is hearsay? Why is it objectionable? And are there any ways hearsay can come into evidence?

Definition of "Hearsay"

The actual legal definition of hearsay is pretty easy. It's an out of court statement sought to be introduced into evidence (in court) as evidence of the truth of what was said. Let's break that down a little bit.

The Right to Face Your Accuser

The hearsay prohibition comes from the ancient (in U.S. Law) right to face one's accusers. If the accuser is allowed to make a statement outside of the sight of the jury that is considering it, without being cross-examined to establish context and believability, you have not been allowed to face your accuser. With a few exceptions, that won't be allowed if it is objected to.

An Out-of-Court Statement Is Usually Hearsay

An out-of-court statement means that it was said, by someone, outside of the courtroom in question. That means that the statement was made by somebody who, generally, was not under oath (although it could have been said in another court, under oath) in the presence of the people who now need to decide whether it was true or not.

An Example of Hearsay

Here's a simple example: Jane remarks to a friend one day that, "that guy must be over six feet tall!" Bob heard her comment and later, while attempting to prove that Joe is over six feet tall, testifies that "Jane said he must be over six feet tall."

Can you see how that would be hearsay? Bob is offering Jane's comment as proof that Joe is over six feet tall, but the court (or jury, as the case may be) can't observe Jane to see whether she looks like she's lying, or whether she's serious. And the person trying to prove that Joe is 5'2" can't cross-examine Jane to see if she thinks she's good at guessing people's heights, whether the lighting was good, the perspective was true, or whether that might have been Joe's brother Schmoe instead. So the statement is hearsay if it's used to prove how tall Joe was.

Not Hearsay

But what if it's used to prove that Jane was alive and able to communicate that day? Then it isn't being used to prove how tall Joe was. Rather, it's being used to prove something the person testifying can be questioned about and the jury can decide the truth of. If the question involves when Jane was kidnapped, for example, the fact that she was seen and able to make off-handed comments could be crucial. The accused can carefully ask Bob how well he saw Jane, whether she seemed comfortable, etc. So the statement would not be hearsay for that purpose.

So you see that "hearsay" involves both a person out of court and a purpose for the use of the testimony. And hearsay can be written or spoken, it doesn't matter which as far as the rule is concerned.

A Hearsay Example from Debt Law

Now let's take a likely example from the debt law context (although the most common will involve business records, a subject for another day). If Bill Collector is testifying he "verified" your debt by calling John Doe Creditor when you asked for verification, the statement is not hearsay regarding the Fair Debt Collection Practices Act's requirement that verification be done. But if Bill tries to introduce John Doe's statement as proof that you do, in fact, owe the money, it's hearsay because the jury or judge would need to see John Doe to decide whether he's speaking truthfully and accurately about you.

A Final Twist: Party "Admissions"

There is one final twist to the hearsay rule you should know about, called "party admissions." That rule makes statements made by a party to the lawsuit, even if made outside of court, not hearsay if they are offered to be used against that party. So if you admit to a debt collector that you owe money during an angry phone call, you may hear that statement again in court. Another good reason to be very careful when you speak to debt collectors.

If you are being harassed or sued for debt, you can get a lot of help, much of it free, from my website at: http://yourlegallegup.com. Or please take a look at a brief video presentation: http://www.youtube.com/watch?v=WcxsiR5vedU.

Kenneth H. Gibert.

I Received a J.D. from Washington University Law School in 1989 and practiced law in St. Louis city and county (federal, state and local courts) for almost fifteen years, the last several of which were focused almost exclusively on debt litigation. My mission is to protect ordinary people from being taken advantage of by the debt collectors. Sign up for a free report and more help for people struggling with debt.

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