We all know what “hearsay” is in colloquial language. Loosely, it refers to things that are said about someone which cannot be substantiated. Hearsay may also be referred to as “rumors” or “tittle tattle.” To give an example of hearsay, let’s say that a group of people are sitting round the dinner table discussing their friends. One of them pipes up and says that he heard from a friend of his that he had been told by someone else that he had gotten away with driving home 20 miles one night while drunk. That’s hearsay. Maybe it’s true, or maybe it’s a total fabrication. Of course, this sort of casual conversation is commonplace in many social situations and in most cases is quite trivial and harmless. The real problem with hearsay is when it is presented as factual evidence in a court case, especially when it is a criminal case. The following article discusses exactly what is referred to as hearsay in a legal sense and when, if ever, it can be used in Massachusetts.
Hearsay evidence in a criminal law case
Hearsay is anything that has been stated as evidence supporting an assertion that has been made in a criminal law case that has not come directly from the person it refers to. Hearsay could be a verbal or written statement and is rarely admissible as evidence in court with a few exceptions which will be explored further below. Hearsay as it may be presented as evidence is similar to, although not exactly the same as, circumstantial evidence.
The person who makes the hearsay statement is referred to as the ‘declarant.’ To take an example, say that Brett has been charged with theft. Maria claims that she overheard someone she knew called Stefan saying that he had seen Brett handling stolen property after a theft. Maria in this case would be the declarant. Without Stefan’s direct evidence, Maria’s statement would only be hearsay and would probably be inadmissible in court. Having said that, there would probably be nothing stopping officers investigating the alleged crime interviewing Maria, then pursuing Stefan to see whether there is anything he can contribute that has a direct connection with the theft.
Why is hearsay generally excluded from criminal cases?
The general rule that hearsay cannot be presented as evidence in criminal cases is not unique to Massachusetts. It comes, in fact, from the Sixth Amendment, specifically a clause in the Sixth Amendment called the Confrontation Clause. This clause was designed to protect the rights of an accused person (or their legal representative) to be able to cross-examine anyone who offers evidence against them as a witness. As hearsay is presented by a third party, not by the person who was supposed to have said something incriminatory, this person, the declarant, cannot appear in court as what they say is too unreliable to be used as part of the trial. If in the fictitious example given above, Stefan is found and is called upon as a witness, then whatever he has to say may be admissible in court. It is not hearsay.
Exceptions to the exclusion of hearsay
What is or is not regarded as hearsay and what is and what is not admissible as evidence in court is actually quite complex and it is best left to a criminal defense attorney to decide whether to object to any evidence that may be inadmissible. There are in fact several exceptions to the general rule that hearsay cannot be used as evidence in court because of its unreliability. Some of these exceptions are explored below.
Excited utterance
Someone who under the stress of a particular experience makes a statement is likely to be saying it in the heat of the moment and probably revealing their true sentiments. If someone overhears this sort of statement and offers it as evidence, it may be admissible as an “excited utterance” even if the person who made the statement is not available to be cross-examined. This exception is based on recognition that people tend to not lie when responding to particularly challenging situations.
Statements against interest
In some cases, a hearsay statement made by a declarant which could possibly incriminate the person making it may be admissible as evidence. The reasoning behind this is that it would be unlikely that someone would fabricate the statement if it might prejudice their own interests. These exceptions to hearsay evidence in U.S. law are called “statements against interest”.
Matters of record
There are many official documents that can be used as evidence despite the fact that they have not been issued or created by the accused individual. These include things like birth or marriage certificates, tax returns, prior court decisions, contracts, promissory notes, and business records. These are referred to as “matters of record”.
Then-Existing Mental, Emotional, or Physical Condition
A statement that has been made that reveals the emotional, mental or physical state of another person of interest may be admissible as an exception to hearsay as long as the evidence is used to describe the person’s condition rather than what he or she actually said or did.
These are just some of the exceptions to hearsay which are more routinely used. However, if you have been charged with a criminal offense and believe that evidence is going to be offered against you which is false, you should discuss this with your attorney who may be able to have the evidence made inadmissible if it can be shown to be hearsay and does not fit one of the categories of exception permitted in law.
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