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Some Basics on Hearsay

You've heard the word "hearsay" right? People say, "But that's just hearsay." What does that even mean? I hear it in casual conversation, and I want to tell the person, "That's not what hearsay means." I'm a lawyer, I can't help it!

The most common definition of hearsay is this confusing mouthful: "A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted."

Having gone to a top law school, where most (or maybe all) of the professors never actually practiced law, I can tell you we spent way too much time on hearsay in evidence class. Like 3 weeks. Yet in actual practice arguments about hearsay come up about once every couple of years.

Hearsay boils down to reliability: did the person actually say that thing they are alleged to have said?If something is hearsay, it's not admissible as evidence unless an exception applies. And there are many exceptions.

One exception is "dying words" or "dying declarations". This is based on the assumption that people who are about to die tend to be truthful. People don't want their last words on this earthly plane to be lies.

Another exception are "statements against interest". This is based on the assumption that people won't say bad things about themselves/implicate themselves unless it's true. For instance Kevin will probably not tell Ann that he, Kevin, killed George unless he did kill George.

Another common exception are records kept in the ordinary course of business. This comes into play when you have a document that you need to put into evidence. You have someone from the company testify that, yes, that is the kind of document that we kept/maintained in the ordinary course of business. Thus, the statements in the document are reliable/true and are evidence in admissible form.

Hearsay is an interesting topic from an academic point of view. In reality the intricacies of hearsay don't come up too often.

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