Wednesday, December 11, 2019
What most people think is hearsay is really the personal-knowledge rule, also called the first-hand knowledge rule.
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted in the out-of-court statement. Hearsay can even be an out-of-court statement that was made by the very person who is on the witness stand testifying in court.
Example: Witness A is on the witness stand. He testifies that he spoke with the defendant driver in a traffic collision shortly after the collision. Witness A is asked by examining counsel, "What did you say to that driver?"
Opposing counsel: "Objection. Hearsay."
The court: "Counsel will approach the bench."
(At a whispered discussion at the bench:) The court: "What will the witness say."
Examining counsel: "The witmess will say that he said to the driver, You ran the red light.'"
The court: "And for what purpose is that out-court-statement statement being offered?"
Examining counsel: "To prove that the defendant ran the red light."
The court: "The objection is sustained. The witness's out-of-court statement is hearsay."
But instead, if the examining counsel had said, in response to the judge's question: "The out-of-court statement is being offered for the purpose of giving context to the driver's response to it."
The court, "And what was the driver's response to it?
Examining counsel: "Witness A will say that the driver responded, "Yeah, I know.'"
The court: "The objection is overruled. The witness's out-of-court statement is not hearsay."
Two things about the above:
(1) If the examining counsel had simply asked the witness whether HE actually saw the driver run the red light, there is no out-of-court statement involved at all, therefore no hearsay to deal with.
(2) Even if an out-of-court statement IS hearsay, there are 20-30 exceptions to hearsay, depending on what court you are in, so a hearsay statement still could be admissible.
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