I often have clients tell me that a statement in a criminal complaint, a police narrative, or something said in a videotaped interrogation is bogus evidence because it is “just hearsay.” That may well be the case, but such a statement is an oversimplification.
Before diving deeper it is important to understand what hearsay is, or at least as it is understood by the legal community. “Hearsay” is generally understood by lawyers to be any out-of-court-statement offered for the truth of the matter asserted. More simply, hearsay is a statement that is being offered in court to prove that the contents of the statement are true. That last word is key.
Whether or not a statement is hearsay depends on the purpose for which it is being introduced in court. For example, if at a trial to determine whether Zane committed theft, Andy testifies that Brandy told him that she was the one who committed theft, whether or not this statement is admissible depends (in part) on the purpose this testimony is being introduced.
If Zane’s defense attorney is offering this testimony for its truth – that Brandy committed the theft – this statement is hearsay (whether or not it is still admissible under some exception to the hearsay rule is another discussion, one for another post). Zane’s attorney is trying to establish an alternative theory to the one presented by the prosecution where Zane is alleged to have committed a crime.
However, if Brandy testified earlier saying that Zane was the one who committed theft, Andy’s statement could come in not to prove that the statement is true (i.e. that Brandy committed the theft with which Zane is accused), but rather that Brandy has made inconsistent statements. This is called “impeachment,” and the purpose is to reduce an individual’s credibility. Here Zane’s attorney is not trying to develop another theory, at least not expressly. She is calling Brandy’s truth-telling into question, not saying that she was the one who committed the theft.
This example is one simple of example of how complicated and nuanced hearsay and its exceptions can be.
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Scott Engstrom is an associate attorney at Petit & Dommershausen, SC. His practice focuses primarily on criminal defense and family law. He serves all of Northeast Wisconsin, including Brown, Outagamie, and Winnebago counties.