One of the most common objections in the courtroom is the objection to hearsay testimony. Hearsay is a prior statement (usually oral) made by a third party who is not in the courtroom at the time the statement is offered as evidence. A hearsay statement, with certain exceptions, is not admissible as evidence of the truth of the subject matter of the statement. For the most part, a witness is not allowed to testify about what someone else who is not in the courtroom said in the past.
The following example is illustrative: In a car accident case, Driver A tries to testify that he overheard a third party at the accident scene say that Driver B had been drinking prior to the accident. This testimony is not allowed. Why not? Here are some of the reasons:
– Driver A, who may have a motive to be untruthful, could be making up the story about overhearing the statement that Driver B was drinking.
– Driver A, who may have a motive to favor himself over Driver B, could have heard the statement incorrectly; in other words, he may have heard the statement in a favorable light.
– The third party who allegedly made the statement is not present in the courtroom, and so cannot be cross-examined by the attorney for Driver B, or have the judge and jury evaluate his or her credibility.
– There is no way to test the observer’s vantage point, memory, qualifications to comment on the issue, whether they have any potential bias, or even determine whether anything at all was said or the precise words that were used.
In short, most hearsay is prohibited in the courtroom because, on balance, it is not reliable enough to be used as evidence to support or defeat a claim. There are exceptions to this rule, however, mostly dealing with hearsay given under circumstances where its reliability is not in question, and we will look at some of these exceptions in our next issue.
– Kevin Palmer