Hearsay: the Telephone Game in the Courtroom

A lot of folks talk about hearsay. This blog covers what hearsay is, and a little of what it isn’t.

In elementary school, we occasionally played the “Telephone Game.” We played something like this: One person started by whispering a phrase or sentence in another person’s ear. The second person–ideally–repeated that phrase or sentence to her neighbor. After a class of 25 or so students each heard and repeated the phrase, the last person said what he or she heard aloud to the rest of the class. Laughter often ensued. The person who started then stated the original phrase. Often, the students misspoke, mis-remembered, or otherwise changed the phrase. The Simpsons referenced the game in an episode about teacher strikes (viewable here).

While not every instance of the Telephone Game ended with “purple monkey dishwasher,” the game itself shows the unreliability of overheard statements. In court, we often call overheard statements “hearsay.” But not everything that appears to be hearsay actually is.

Hearsay – Defined

Minnesota law 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.” Let’s break that up a bit.

A “statement” includes spoken or written words, and can include conduct (a waive or a middle finger are both statements, for example). The “declarant” is the one testifying (usually a witness). “[O]ffered to prove the truth of the matter asserted” is a bit more difficult to define. Most of the time, we say things because we want people to believe them. If someone says she is going to the store, that statement is probably true. And, it was probably said because the speaker wants the listener to believe she is actually going to the store.

The Purpose of the Statement Changes its Admissibility

In court, we always ask ourselves, “what is the purpose of the statement?” If my roommate tells me he plans to take the trash out after dinner, I generally cannot use his statement in court to prove he took out the trash after dinner, or that he intended to take the trash out. However, if I offer the statement to show why I didn’t take the trash out, that statement is not hearsay. The statement in this case shows its effect on me, the listener. I didn’t take the trash out because my roommate said he would.

In the first example, the statement is offered to prove later actions or intent. That’s inadmissible hearsay (generally). In the second example, the statement is offered for its effect on the listener. That is, the listener considered his actions based on the speaker’s words. The court would allow the statement for that purpose.

The rules of evidence provide a lot of exceptions to the rule against inadmissible hearsay. If, for example, I sued my roommate because he didn’t take the trash out, he and I are parties to the case. That is, I’m the plaintiff (the one suing) and he is the defendant (the one being sued). A party opponent’s out-of-court statements may be used against him. So his statement may be offered both as substantive evidence to prove his intent to take the trash out, and the effect the statement had on me (of deciding not to take the trash out). We call that “admissible hearsay.” It fits the definition of hearsay (see above), but the rules of evidence allow it in court.

Another exception includes statements that have legal effect. For example, if I offer to pay him five dollars to take the trash out, and he states that he will, we have a contract. The statement may be admitted to show its legal effect (the formation of a contract).

Our Laws Developed Over Centuries

Much of our law on hearsay developed from the Common Law. The Common Law stems from English court, and provides much of the rules and background we use today. When the Framers of the Constitution created their rules, they borrowed much of the Common Law. Some rules they left behind. Others they modified. For example, we have the right to confront our accused. It wasn’t always so. Also, we have rules against the admission of hearsay. If I testify in court that I heard Jane talk about John, the court and the jury don’t really know if Jane is reliable. All they can tell from my testimony is that Jane said something. That’s the major purpose behind excluding hearsay: to be able to verify the truth of a statement by getting the statement from the source.

I had the recent opportunity to cross-examine a witness. She alleged our client committed some questionable conduct. On cross-examination, I discovered–and showed the judge–that all of her allegations were based on conduct-hearsay. That is, the witness didn’t actually see anything herself. Others told her what they saw. She testified that she feared our client based on what others told her. The Court discredited the testimony and dismissed the case against our client.

Courtroom practice requires knowledge of the rules and how they work together. In the example above, we didn’t even present a case. Instead, we used the courtroom rules and burdens of proof to win.