What is hearsay evidence?

Hearsay Evidence in Mississippi Courts

Hearsay evidence is probably not what you think it is.  Everyone has heard someone say something like “Everyone is saying that he was drunk at the party before he went home, but that is just hearsay.”  Hearsay evidence is more than that.  Most people associate hearsay with rumors, gossip, or the type of “he said-she said” testimony that makes up many domestic dispute and assault trials, and in some cases that may well be hearsay.  But hearsay is a complicated evidentiary concept that has enough twists, turns, rules, and exceptions to the rules to keep lawyers arguing in court for hours.

Here I’m just going to explain what hearsay is, and then maybe in later posts we’ll discuss some advanced hearsay concepts.  Here we go . . .

Definition of Hearsay

Mississippi Rule of Evidence 801 defines hearsay as “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.”  Imagine a witness on the witness stand at a trial.  That witness cannot discuss what they heard someone else say, if what was said is being offered to prove something.  Or they cannot discuss what they read, or introduce a document, if that document is going to be offered to prove a fact.

Some Examples:

  • Joe is on the witness stand and testifies that Sheila, who is not at the trial, told him that she saw you kill Bob.  If the prosecution is trying to show that you killed Bob, then Joe will not be able to say this.  Your lawyer should object, and the judge should keep the jury from hearing it.  Why?  Because it is a statement offered into evidence (“I saw the Defendant kill Bob”) made by an out of court declarant (Sheila – she’s not testifying) that is being offered to prove the matter of what it asserts (you killed Bob).
  • Joe is on the witness stand and testifies that Sheila said “all police officers are jerks.”  If the prosecution is trying to prove that police officers are jerks, then this statement is hearsay, but if it is offered to prove that Sheila is biased against police officers, then it is probably admissible.  It is not being offered for its truth.
  • As the Defense, we call Joe as a witness, and Joe says he heard you say “I am Charlie Sheen.”  If we are trying to prove that you are Charlie Sheen, then Joe’s testimony is inadmissible, and the jury will probably not be allowed to hear it.  But if we are trying to show that you are mentally unstable, or did not know who you were at the time of your alleged crime, then it would likely be admissible.

The Hearsay Rule

The hearsay rule in Mississippi is expressed in Mississippi Rule of Evidence 802, which simply states that “Hearsay is not admissible except as provided by law.”  Why?  Generally, there are three reasons that the law does not favor hearsay statements being admitted into evidence:

  1. Most “out-of-court” statements are not made under oath.  Witnesses at a trial must take a sworn oath to tell the truth during their testimony on the witness stand.  Someone should not be allowed to say that their friend told them that your dog bit them, because the friend is not there to take the oath in front of the jury (so how can they evaluate whether the friend is lying?).
  2. No opportunity to cross-examine the party who made out-of-court statement.  You have a fundamental right as an accused American to “confront” the witnesses that testify against you.  If out-of-court statements by people not at your trial are allowed into evidence, you are denied your right to confront these people.
  3. No opportunity for the judge or jury to personally evaluate the credibility of the person making the statement.  In court, you get to eyeball the person testifying and use your own judgment to decide if they are lying or not.  The law actually recognizes this as very important, and of course this valuable opportunity is lost if out-of-court statements are admitted.

The exceptions that eat up the rule . . .

Of course there can never be a rule so simple as “hearsay is not admissible,” and hearsay is famous for the numerous exceptions where otherwise inadmissible hearsay may be admitted as evidence in a trial.  Exceptions to the hearsay rule are generally allowed for situations where the testimony is justified due to its trustworthiness and its necessity.  I’m only going to mention a few here, and I may do some follow-up posts about them later:

  • Present Sense Impression - A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.  “That was boring.”
  • Excited Utterance – A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  “Watch out for George!  He’s got a knife!”
  • Then Existing Mental, Emotional, or Physical Condition – A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health).  “I’m sick.”
  • Business Records – records kept in the course of normal business activity that meet certain criteria.
  • Public Records – records kept by public agencies that meet certain criteria.
  • Dying Declarations – A statement made by a declarant while believing that his death was imminent concerning the cause or circumstances of what he believed to be his impending death.  “I can’t believe Bob ran me over with the tractor.”
  • Statement Against Interest – A statement which at the time of its making was so far contrary to the declarant’s pecuniary or proprietary interest or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another that a reasonable man in his position would not have made the statement unless he believed it to be true.  “Yeah, I killed her.  What are you going to do about it?”
  • Catch-all Exceptions – courts may decide that a statement can come in, despite it being hearsay, when the necessity for the statement is strong, and the statement’s “probative value outweighs its prejudicial effect” on the proceedings.

This is a simple introduction to hearsay law.  Entire law school semesters are spent studying hearsay, and I didn’t begin to scratch the surface on it.  Your lawyer should know the rules of hearsay by memory so that proper objections can be made at the appropriate time at trial.  A proper hearsay objection can mean the difference between damaging evidence being admitted in your trial, or staying out.  It is too important to ignore, and so if you need our help do not hesitate to give us a call.