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Hearsay

Hearsay is a term that most people have heard of but likely don’t fully understand, particularly how it is applied in the legal context. Black’s Law Dictionary defines hearsay as “[t]estimony about out of court statements that are involving someone other than the person that is testifying.” Therefore, hearsay is a statement made outside of court that is used in court to try to prove the truth or falsity of the matter at issue. In many cases, hearsay is inadmissible in court. 

In layman's terms, hearsay is a statement made about something based on something that you were told by someone else; it is something that you did not necessarily witness first-hand, but rather heard about from someone else. To explain hearsay more clearly, let’s consider the following car accident case. Assume that a car accident occurred in Charlotte, North Carolina where one driver (defendant) ran a red light and hit another driver (plaintiff). Assume also that there were witnesses present, including John Doe and Jane Smith. John Doe actually saw the defendant run the red light and hit the plaintiff. Jane Smith was looking down at her phone and only looked up at the time of impact. Jane Smith heard John Doe say “whoa, that light was red and the defendant ran right through it.” Jane Smith remarked “I can’t believe that person ran a red light!” The plaintiff has no recollection of what actually happened, just that he/she was involved in a car accident. 

One example of hearsay would be if the plaintiff testified at trial that John Doe had witnessed the accident and told plaintiff that he (John Doe) had seen the defendant run the red light and hit the plaintiff thereby causing the car crash. Keeping in mind that the plaintiff had no recollection of the accident, his/her testifying that the car accident was caused by the defendant running a red light, could be hearsay, because he/she had no first hand knowledge that the defendant ran a red light. 

Another example of hearsay might be Jane Smith testifying in court that the accident was caused by the defendant running a red light. Jane Smith did not see the defendant run the red light, she only heard it from John Doe; therefore she also does not have any first-hand knowledge. If she testified that she heard a crash, looked up and saw the front of defendant’s car in the side of plaintiff’s car, then she would be testifying about information that she had actually witnessed; that would not be hearsay. 

Hearsay evidence is prohibited in both North Carolina state court by NC Rule of Evidence 802 and federal court by Federal Rule of Evidence (FRE) 802. However, there are numerous exceptions to the hearsay rule which results in hearsay evidence frequently being admissible at trial. It is up to a judge to determine if hearsay is admissible. 

Exceptions to the Hearsay Rule 

There are more than 20 exceptions to the hearsay rule. Some of the more common include: 

  1. Present Sense Impression. This refers to a statement made at the time that the person testifying (declarant) saw the event, it is the declarant’s impression or perception of what happened at the time of the event. If John Doe testified that the defendant appeared to be drunk, because he/she was staggering when he/she got out of the car, that statement might be admissible under the present sense impression exception. Jane Smith’s statement about the defendant running the red light might actually be admissible based on her perceptions while witnessing the event - hearing the crash, seeing the position of the cars, and knowing maybe that she was waiting for the light to turn. 
  2. Excited Utterance. This refers to statements made at the time of the event, while the declarant is under the surprise or stress of the event. This can overlap with the present sense impression exception. Jane Smith’s restating what she heard John Doe, could also be admissible under this exception. Another example of an excited utterance might be a statement by the defendant as he/she got out of the car apologizing and saying “it was all my fault.”
  3. Then-Existing Mental, Emotional, or Physical Condition. This exception may be used to prove the mental or emotional state of the defendant or plaintiff. If John Doe testifies that the defendant got out of the car and said that the devil appeared to him and told him that he needed to drive as fast as possible and run red lights, that would be helpful to prove that the defendant was delusional. 
  4. Reputation as to Character. This is one of the more interesting hearsay exceptions available. Conceivably, if the defendant in the above scenario is known in his/her community to be a bad driver, and has a history of running red lights and causing accidents, testimony about his/her character could be admissible in court. 

Not Just Statements

Documents can also constitute hearsay, unless of course they fall under one of the hearsay exceptions. These can include medical records, letters, facebook posts,affidavits, diaries, memos, and receipts.  Like oral hearsay, the numerous exceptions to the hearsay rule can be applied to documents therefore making them admissible in a variety of situations. For example, assume that John Smith wrote a statement about the car accident shortly after it happened but that he was not called to testify about the accident until 2 years later. He may not recall some of the specifics of the accident, so the testimony in his statement, which was written while his memory was fresh, could be used in court and would not be considered hearsay evidence.

Find a Charlotte Lawyer Near You

The Charlotte, North Carolina based lawyers at Rosensteel Fleishman, PLLC  are experienced attorneys who can help you with your case. They understand the law and what statements would be considered hearsay and therefore inadmissible in court.  Please contact our office at 704-714-1450. There is no fee for an initial consultation. 

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