in a court testimony--what is considered hearsay?

Answer 1

Hearsay is "second-hand" information. It occurs when a witness testifies NOT about something they personally saw or heard, but testifies about something someone else told them or said they saw. Hearsay usually involves an attempt to get some crucial fact entered into evidence that cannot be entered into evidence by any other means. The constitutional due process danger that this represents is that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something. The confrontation clause of the Sixth Amendment has never been interpreted so literally as to preclude hearsay evidence. Care must be taken to avoid hearsay from consisting of rumor, gossip, or scuttlebutt. There are times when hearsay evidence is perhaps the right thing to do -- as in cases where a young child has been molested -- and, there are times when hearsay evidence is the only thing to do -- as in cases where the original witness has died or is unavailable. At common law, there were five well-established exceptions to the hearsay rule, and these exceptions have been a part of the hearsay rule from the beginning. Today, there are almost three times as many exceptions (10-20 depending upon how you do the counting), and it's not that hearsay exceptions are a growing area of evidence law, but only that more practical reasons exist making it necessary to add more exceptions. The hearsay rule, its exceptions, and hearsay evidence are some of the most defining features of Anglo-American criminal justice. It is appropriate to think of the hearsay rule as the main exclusionary rule in all of evidence law.

Modern Exceptions:
EXCULPATORY STATEMENTS -- Under federal law (and an unknown number of states), a false alibi can come back to haunt you. Today, it is not uncommon for some cases to be tried in the media. Let's assume you or your defense team go on TV and make statements to the press which claim you are innocent of a crime and state some alleged facts (alibi) that turn out later to be false or untrue. In such situations, the jury will be instructed to consider your false media statements as circumstantial evidence of guilt.

FAMILY HISTORY OR PEDIGREE -- This is a rather old exception to the hearsay rule that involves statements about family history, such as marriage, descent, and relationships. The law isn't interested in things such as "Your great-aunt married her first cousin" or anything like that, but it is interested in many kinds of hearsay statements (even when the author is unknown) about your family that might be recorded on tombstones or in family bibles. Actually, any sort of family correspondence will do, as the purpose is frequently to establish one's reputation within a family rather than an overall family's reputation in the community.

FORMER TESTIMONY -- Sometimes, testimony can be taken from a former trial or proceeding and used in a subsequent trial. There is a difference of opinion on whether this can be done in a civil trial using testimony from a criminal trial (some states allow it, but others don't). There are also limits to the introduction of grand jury testimony by a witness who asserts their Fifth Amendment privilege at trial. The general rules are that there must be: (A) an inability to obtain any re-testimony by the witness; (B) the witness must have had the opportunity to be cross-examined when the original testimony was given; and (C) there must be an "identity of issues" which means that the witness is a party to the case, with some standing in the case, which makes their former testimony relevant. If a different conclusion is reached in the subsequent trial than the conclusion reached in the original trial, then no double jeopardy or collateral estoppel has occurred since the subsequent testimony was only offered as a piece of evidence, not as an indicator of guilt or innocence.

PAST RECOLLECTION RECORDED -- If a witness was to repeatedly say "I don't remember," the court might allow a variety of techniques, some bordering on hearsay, which afford the witness an opportunity to refresh their recollection by producing documents or other recordings that trigger an implanted memory. It is important to distinguish here between past recollection recorded and present recollection revived. Both methods involve refreshing memory, but the exception being discussed here relates to the more rigorous standards for introducing a physical piece of evidence (notes, memoranda, or things that the witness recorded themselves) which jogs the memory. The physical piece of evidence becomes the memory. In contrast, when a witness is refreshed in their present recollection (by hypnosis or some such method), what the witness then has to say becomes the memory. This exception typically involves a piece of paper, or document (like a business record) which speaks to the jury, and allows the hearsay contained within to have some inferential value.

PRIOR IDENTIFICATION -- In a rare legislative act, the United States Congress amended the FRE in 1975 to declare that nonsuggestive lineups, photographic arrays, and other procedures of pre-trial identification are NOT hearsay, and that prior, out-of-court identifications can count as substantive identifications at trial. The prior identification exception is only admissible, however, when the person who made the identification can be called to testify and subjected to cross-examination.

SOCIAL SCIENCE SURVEYS -- As a general rule, the law is highly suspicious of social science research findings, especially those that involve public opinion polls or surveys. The law is not supposed to, after all, be led by public opinion. Yet, there are times when it is absolutely necessary to draw upon scientifically-collected public opinion. Admissible hearsay in this regard might involve cases of libel, slander, or copyright infringement (e.g., Zippo Manufacturing v. Rogers Imports 1963) in which public opinion establishes whether or not consumers are confused by product labeling or look-alike products. The general rule is that such evidence can NOT be used to establish guilt or innocence in a case, but only for "secondary purposes" which means an inference can only be made about the state of mind of consumers. Opponents of social science in law (and there are many) frequently argue that admitting social science research is like admitting multiple hearsay. Proponents of social science in law argue that it is the same as any forensic science.

STATE OF MIND AND PHYSICAL CONDITION -- There are times when emotions, feelings, hunches, and intuitions can be admitted as evidence, if the person offering them is competent and the testimony supports a material fact. It is important to understand that this kind of evidence can ONLY be used to support a material fact, and it CANNOT be used to support other facts. State of mind exceptions are only used to make a point, and should not be confused with establishing the elements of mens rea for an offense. The two most common examples of this which occur in the legal system involve emotions of affection and states of drunkenness. In divorce or domestic cases, it is often the case that a credible witness is needed to make the point that the defendant "loved" or "hated" the plaintiff or victim. Normally, such testimony would be objected to as outright hearsay, but if backed up by corroborating facts (such as proof that the defendant did or did not buy them flowers), then it might be admissible hearsay under the state of mind exception. The law assumes feelings and conduct go hand in hand, even in the absence of speech. Sometimes, it treads over into what is often called "habit" or "character" evidence, as when it seems everyone in the community knows the defendant is the "town drunk" but there is little by way of any other proof to support this. Doctors and medical personnel are likewise allowed great flexibility in what they can say about a person, if they are testifying as a hearsay witness on matters of physical condition rather than as expert witnesses, and such matters might include things like bad eyesight, lack of self-care, unwillingness to follow instructions, or bad memory. Judges often have a difficult time explaining to the jury how to weigh such evidence, and the proper inferences that a jury can draw, but it is essential that jury instructions contain some guidelines when medical hearsay is involved. The most controversial practice in this area is the Hillmon doctrine (Mutual Life Insurance Co. v. Hillmon 145 U.S. 285 1892) which allows evidence of the state of mind of one defendant to be used in inferring the state of mind (or conduct) of another defendant.

TENDER YEARS -- When a juvenile is involved, say, a very young juvenile, as a victim of sexual assault, the law would not require the victim to testify. Instead, the doctor, medical personnel, paramedics, counselors, or whomever the victim talked to would be allowed to testify about the identity of the perpetrator and/or possible motives that can be implied from the hearsay. When personnel examine such a victim and extract such hearsay testimony, care must be taken to not be asking leading questions, and any information extracted must come from normal conversation in the course of providing medical treatment.

TREATISES AND PROFESSIONAL LITERATURE -- It is becoming more and more common these days to see lawyers holding up academic textbooks and other literature in court to make statements, amounting to hearsay, about what are established procedures in police science and so forth. Normally, the expert who wrote the book would be called to be cross-examined, but procedures like subpoena duces tecum compel the production of records such as this, and they are sometimes entered into evidence as a hearsay exception with the presumption that compelling the evidence produces the same degree of trustworthiness as if the expert testified directly. Somewhat more controversial is the practice of having experts testify-at-a-distance to various "hypotheticals" posed to them by one or both parties to a case.

Answer 2

Hearsay Testimony

Answer 3

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RE:
in a court testimony--what is considered hearsay?

Answer 4

As Scott's answer indicates, your short question has no short answer. In fact, I'd guess a quarter to a third of my evidence course dealt with hearsay. In general, it's an out of court statement offered to prove the truth of the matter asserted. Then, check for an exception. Then check to see if 801(d) applies...

Answer 5

Anything that was not witnessed by an individual but heard from another. Example, I gust had the drivers side window broken out on my Porsche last night. My girlfriend saw a white car speed away and she told me about it. I know that the person that had it done but I didn't see him nor did I see that people that broke the window out but I did see them talking just before it got broken. Her telling me isn't enough evidence and if I were to tell this in a court of law it would be hearsay because I heard it from her and didn't see it for myself.

BTW, this really happened last night.

Answer 6

Hearsay is anything that is repeated by a person who heard the comment. There are tons of exceptions to the hearsay rule. You'd have to be more specific in order to find out if the Rule applies.

Answer 7

Hearsay describes statements made outside of court or other judicial proceedings.

Answer 8

Anything that is said in court that is not said by the person who saw or heard it first hand.

Answer 9

In legal terms, I believe that in addition to the first answer, it is any thing that cannot be substantiated by witness or documentation

Answer 10

You asked this same question 4 days ago. The answers are not going to improve.