The Basic Elements of Hearsay

Most people are familiar with the concept of hearsay, and many intuitively understand that it can’t be fully trusted. When sharing a juicy bit of gossip, a person might qualify his statements by saying that it’s hearsay, meaning he only heard the information from someone else. As such, he can’t verify that the information is true. Courts also recognize the unreliability of hearsay, which is why they generally preclude it from evidence. Of course, in court, hearsay is a highly technical concept, as evidenced by the fact that the Federal Rules of Evidence devote seven rules to just this one topic, or that there are entire books discussing those rules. For present purposes, we’ll have to content ourselves with a brief consideration of hearsay’s basic elements.

1. A statement

The first element of hearsay is a statement. A statement is any assertion. The assertion can be made orally, in writing, or even through conduct. For example, if you ask your friend a question, and he nods his head in response, that would count as an assertion. This means that your friend nodding his head in answer to your question is a statement under the Federal Rules of Evidence, and might even be hearsay if the other elements are satisfied!

2. Not made while testifying at the current judicial proceeding

The second element is often summarized by saying that hearsay requires an out-of-court statement. This means that the person who made the statement did so not as a witness at trial or in a hearing, but just as part of his or her everyday life. So, to take the example above, where you and your friend were when he nodded his head makes a difference. If you were at the mall when you asked your question and he responded, then his statement would satisfy this element of hearsay. On the other hand, if you were questioning your friend as a witness at trial, then his response would not satisfy this element, unless it happened in a previous trial.

3. Offered in evidence to prove the truth of the matter asserted

This element can be tricky, but it’s key to many disputes about out-of-court statements. Such statements are only hearsay if they are offered “to prove the truth of the matter asserted,” as Federal Rule of Evidence 801 puts it. For example, suppose your friend got in a wreck with a green car. After the wreck, he said, “That green car swerved into my lane!” The “matter asserted” by that statement is that the green car swerved into your friend’s lane. If you tried to offer that statement as evidence that the green car swerved into his lane, you would be offering your friend’s out-of-court statement to prove the truth of the matter asserted, meaning it would be hearsay.

picture describing what hearsay is

But suppose that your friend died from injuries sustained in the car accident. In a lawsuit against the other driver, his family might offer the statement to recover damages for your friend’s pain and suffering by showing that your friend was conscious following the wreck. In that case, the statement isn’t being offered to prove that the green car swerved into your friend’s lane, but to show that he was conscious. Because the statement didn’t assert that your friend was conscious, it wouldn’t be hearsay under those circumstances.

The rules relating to hearsay are many and complex. This brief discussion of the legal concept barely scratches the surface of how the Federal Rules of Evidence deal with it. But at least now you have some idea of how the concept that makes you ignore gossip applies in court. If you’re interested in reading more of the rules on hearsay, you can find them in the Federal Rules of Evidence sections 801 through 807.