Introduction

“‘That’s hearsay, I guess,’ Mr Depp told the court, which prompted laughter. The judge replied, ‘I’m not sure it’s even being offered for the truth of the matter.’”^[1]

If you paid attention to the Johnny Depp-Amber Heard trial between April 11 and June 1, 2022, you know that hearsay was a hot topic of coverage, and that is what we discuss in this article.

What Hearsay Is

Hearsay is often defined as “an out-of-court statement made for the truth of the matter asserted.”^[2] What the does that mean though? First, let us look to our trusty Federal Rules of Evidence (FRE):

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

The following definitions apply under this article:

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.^[3]

Keep in mind that there is a plethora of case law that dives into the subsections of Rule 801. This article is a general overview of what hearsay is, and what it is not. It is important to keep in mind that out-of-court statements are any that occur outside of the current trial or hearing.[4]

Whenever you are eliciting any kind of testimony from your witness, you must be aware of the purpose of the testimony. If you are offering it for a purpose where it does not matter whether the testimony is true or not, then it is not hearsay.[5]

For example, let’s say Alex is on the stand and I seek to elicit that Jared told her “It’s Halloween!” on January 1, 2023. If I elicit that statement with the purpose of proving it was in fact Halloween, that would be offered for the truth of the matter asserted, and thus hearsay. However, if I elicit that statement with the purpose of proving that Jared is sarcastic, it does not matter whether the statement is true or false, and thus, not hearsay.

If you have ever played the game of telephone, then it will be easy to understand why statements made by a declarant for their truth should be inadmissible without a proper exception. There are far too many biases and misconceptions when relaying second-hand information.

Exceptions to Hearsay

There are two ways to overcome a hearsay objection. The first is through one of the many hearsay exceptions. These exceptions are outlined in FRE 803 (Exceptions to the Rule Against Hearsay), FRE 804 (Hearsay Exceptions; Declarant Unavailable), and FRE 807 (Residual Exception). Each exception has a foundation that must be laid in order to qualify the testimony.

Once the proper foundation for a particular exception has been laid and accepted by the court, then a statement that is in fact hearsay, will now come in for its truth.

The policy behind many of these exceptions is that the circumstances surrounding them are of a nature in which it is extremely unlikely that the declarant would have lied. It is important to note that FRE 803 is a non-dispositive list of exceptions.

Exclusions from Hearsay

The second way in which a hearsay objection can be overcome is by proving that the statement you are offering falls under an exclusion which makes the statement not hearsay. Exclusions from hearsay fall under FRE 801(d):

Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or

(C) identifies a person as someone the declarant perceived earlier.

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy

The statement must be considered but does not by itself the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).^[6]

Regarding FRE 801(d)(2)(A), it is important to recognize whether you are in a civil context or a criminal context. If civil, both parties should be able to use this exclusion. If criminal, and the United States, or a particular State, is one party, the defense will rarely (if ever) be able to use this exclusion. That is because under common law, agents of the government (e.g., FBI agents, police officers, etc.) are not considered an opposing party.^[7]

How to Spot Hearsay

Look out for documents. While there may very often be an exception, documents that make assertions and are being offered for their truth, may be excluded as inadmissible hearsay.

Listen to the question. There are certain key words you should listen for that should signal hearsay is about to be elicited. For example, “What did you hear?” “What did you learn?” “What did they say?”

Conclusion

Hearsay, like character, is not an easy concept to understand. However, if you focus on the purpose of a document or testimony, it should help you grasp the concept. Finally, remember that just because you may be able to overcome hearsay via an exception or exclusion, the document or testimony still must pass FRE 401 and FRE 403.

[1]Graeme Massie, Johnny Depp draws a laugh in court by predicting ‘hearsay’ objection from Amber Heard’s lawyers, Independent, Apr. 21, 2022,  https://www.independent.co.uk/news/world/americas/johnny-depp-laugh-court-objection-b2062044.html#:~:text=%E2%80%9CThat’s%20hearsay%2C%20I%20guess%2C,the%20truth%20of%20the%20matter.%E2%80%9D

[2] Deborah Jones Merritt & Ric Simmons, Learning Evidence: From the Federal Rules to the Courtroom, 450 (5th ed. 2022)

[3] Fed. R. Evid. 801.

[4] Simmons, supra note 2 at 444.

[5] Simmons, supra note 2 at 449.

[6] Fed. R. Evid. 801.

[7] Michael H. Graham, Handbook of Federal Evidence, § 801.23 178 (5th ed. 2001)