Hearsay in its everyday usage refers to a statement repeated from what one has heard from a third party, without any attempt to verify its validity. Gossip is a type of hearsay. Literally the term comes from "hear it said," which is inherently unreliable as to the truth what was supposedly said. Isaiah criticized reliance on hearsay as unworthy of the Lord: "He will delight in obeying the LORD. He will not judge by appearance nor make a decision based on hearsay."
Hearsay also has a specific usage in the legal profession: hearsay is an out-of-court statement, by someone other than the witness testifying, admitted to prove the truth of what was asserted in the statement. The concept is best thought of as codifying the unreliability of secondary or tertiary knowledge.
Explained another way, hearsay is evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else.
Hearsay is typically excluded from legal proceedings due to its lack of reliability for reasons including the following:
- the speaker of the hearsay may have been uninformed
- the speaker of the hearsay may have been lying, without providing the court an attempt to check against the alleged declarant
There are limited exceptions that do allow the admission of hearsay as evidence when special circumstances make the hearsay more reliable than usual. These exceptions include, for example:
- certain prior statements by a witness (F.R.Evid. 801(d)(1) - not considered to be hearsay at all)
- admissions against a party's own interest (in the federal rules, F.R.Evid. 801(d)(2) this is not considered hearsay at all)
- records habitually kept by a person with knowledge of a matter (the "business records exception")
- dying words
- things said in the midst of an occurrence - the res gestae
- statements in learned treatises, provided that the statements are read by an expert on the witness stand
- statements made in the course of seeking medical treatment, legal advice, or confidential communications between spouses made during the marriage.
Hearsay only refers to statements offered to prove the truth of the matter asserted. It does not apply or limit use of testimony about hearing a statement, if not offered to prove the truth of the matter asserted. For example, Bob hearing someone tell him that Richard had stolen his car is not evidence that Richard stole Bob's car, but it can be evidence that Bob believed his car had been stolen by Richard (and was therefore angry with Richard). This exception is generally called the "State of Mind" rule.
Increased allowance in England
As the use of juries has declined in England, the allowance of hearsay has increased. The theory is that a judge is less likely to be unduly influenced by less-than-reliable hearsay than a jury is.
The Civil Evidence Act of 1995 nearly entirely allowed the use of hearsay in civil lawsuits in England and Wales. This was an extension of more than a half-century trend to allow more hearsay in English trials that began with the Evidence Act 1938 and expanded with the Civil Evidence Act 1968 and the Civil Evidence Act 1972.
In England and Wales the Criminal Justice Act 2003 eliminated the common law norms against the use of hearsay and bad character evidence in criminal trials.
- Isaiah 11:3 (New Living Translation).
- See Mark Coen, "Hearsay, bad character and trust in the jury: Irish and English contrasts," IJEP 17 3 (250) (1 July 2013).