Hearsay
Hearsay, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted. In most courts, hearsay evidence is inadmissible unless an exception to the hearsay rule applies.
For example, to prove that Tom was in town, a witness testifies, "Susan told me that Tom was in town." Because the witness's evidence relies on an out-of-court statement that Susan made, if Susan is unavailable for cross-examination, the answer is hearsay. A justification for the objection is that the person who made the statement is not in court and thus not available for cross-examination. Note, however, that if the matter at hand is not the truth of the assertion about Tom being in town but the fact that Susan said the specific words, it may be acceptable. For example, it would be acceptable to ask a witness what Susan told them about Tom in a defamation case against Susan. Now the witness is asked about the opposing party's statement that constitutes a verbal act.
In one example, testimony that a plaintiff stated "I am Napoleon Bonaparte" would be hearsay as proof that the plaintiff is Napoleon, but would not be hearsay as proof that the plaintiff asserted that they are Napoleon.
The hearsay rule does not exclude the evidence if it is an operative fact. Language of commercial offer and acceptance is also admissible over a hearsay exception because the statements have independent legal significance.
Double hearsay is a hearsay statement that contains another hearsay statement itself. Each layer of hearsay must be found separately as admissible for the statement to be admitted in court.
Many jurisdictions that generally disallow hearsay evidence in courts permit the more widespread use of hearsay in non-judicial hearings.
United States
"Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Per Federal Rule of Evidence 801, a statement made by a defendant is admissible as evidence only if it is inculpatory; exculpatory statements made to an investigator are hearsay and therefore may not be admitted as evidence in court, unless the defendant testifies. When an out-of-court statement offered as evidence contains another out-of-court statement it is called double hearsay, and both layers of hearsay must be found separately admissible.There are several exceptions to the rule against hearsay in U.S. law. Federal Rule of Evidence 803 lists the following:
- Present sense impressions and excited utterances
- Then existing mental, emotional, or physical condition
- Statements for purposes of medical diagnosis or treatment
- Recorded recollection
- Records of regularly conducted activity, including absence of entry in records
- Public records and reports, including absence of entry in records
- Records or births, fetal deaths, deaths and marriages made pursuant to law
- Records of religious organisations of facts of personal or family history, contained in a regularly kept record
- Marriage, baptismal, and similar certificates
- Family records
- Statements in documents affecting an interest in property
- Statements in ancient documents
- Market reports, commercial publications
- Learned treatises
- Reputation concerning personal or family history, boundaries, or general history, or as to character
- Judgment of previous conviction
- Judgment as to personal, family, or general history, or boundaries.
- Former testimony
- Statement under belief of impending death in homicide or civil actions
- Statement against interest
- Statement of personal or family history
- Forfeiture by wrongdoing
Also, some documents are self-authenticating under Rule 902, such as domestic public documents under seal, domestic public documents not under seal, but bearing a signature of a public officer, foreign public documents, certified copies of public records, official publications, newspapers and periodicals, trade inscriptions and the like, acknowledged documents, commercial paper and related documents, presumptions under Acts of Congress, certified domestic records of regularly conducted activity, and certified foreign records of regularly conducted activity.
England and Wales
In England and Wales, hearsay is generally admissible in civil proceedings, but is only admissible in criminal proceedings if it falls within a statutory or preserved common law exception, all of the parties to the proceedings agree, or the court is satisfied that it is in the interests of justice that the evidence is admissible.Section 116 of the Criminal Justice Act 2003 provides that, where a witness is unavailable, hearsay is admissible where
- the relevant person is dead;
- the relevant person is unfit to be a witness because of his bodily or mental condition;
- the relevant person is outside the UK and it is not reasonably practicable to secure his attendance;
- the relevant person cannot be found;
- through fear, the relevant person does not give oral evidence in the proceedings and the court gives leave for the statement to be given in evidence.
Canada
Hearsay evidence is generally inadmissible in Canada unless it falls within one of the established common law exceptions. As a result of the Supreme Court's decision in R. v. Khan and subsequent cases, hearsay evidence that does not fall within the established exceptions can be admitted where established that such evidence is both "necessary and reliable". Additionally, hearsay evidence that would otherwise be admissible as an exception can nonetheless be excluded if it is not necessary and reliable, as in R. v. Starr.Australia
The rules of evidence differ among the states and the Commonwealth; the Commonwealth, Victoria, New South Wales, Tasmania, and the Australian Capital Territory all share similar hearsay provisions in their Uniform Evidence Acts; the other states rely upon the common law. As elsewhere, hearsay is usually inadmissible, outside of interlocutory proceedings, unless it falls within one of the hearsay exceptions.Uniform Evidence Act
Hearsay is dealt with under Part 3·2. There are several local peculiarities with its treatment. s 59 defines the "fact" of a hearsay statement as being something "that it can reasonably be supposed that the person intended to assert by the representation". Hearsay rule confines the potentially broad number of assertions it might cover by this broad definition of representation to only intended representations adduced to prove existence of the asserted facts. In Lee v The Queen, the term representation was used to apply to statements and to conduct and was used to encompass all those statements or that conduct would convey to the observer.The extraordinary s 60 allows a statement's use as hearsay if it is admitted for a non-hearsay purpose, although the application of s 60 may be limited by s 137. S 72 excepts "evidence of a representation about... the traditional laws and customs of an Aboriginal or Torres Strait Islander group", although this arguably would have fallen into the "public right" exception at common law. Confessions are called "admissions" by the act. They are dealt with separately under Part 3·4, which lifts the hearsay rule. The act's dictionary defines admission broadly enough to include anything that might be used against the accused. The other sections in the part for the most part codify, roughly, the common-law rules.