OBJECTION: Hearsay! - Looking at the Law

These words are common on many movie and television shows involving the law and the trial of cases. What exactly is hearsay? Why is it not admissible? Are there exceptions to the hearsay rule? Actually, the concept of hearsay in our evidence law is most interesting and gives us a great deal of insight into how the law works to make sure that evidence presented in the courtroom satisfies the requirements of having a probative value and being generally reliable.

Connecticut's evidentiary landscape is governed by the Connecticut Code of Evidence. Section 801 of the Code defines hearsay as "a statement, other than one made by the declarant while testifying at the proceedings, offered in evidence to establish the truth of the matter asserted". Statement is defined in that same section as "an oral or written assertion or non-verbal conduct of a person, if it is intended by the person as an assertion". Declarant means a person who makes a statement.

An example of hearsay is necessary in order to begin any discussion on the subject. If evidence is offered that a person has stated that "it was icy in the parking lot on June 13", that statement is not admissible to prove that, in fact, it was icy in the parking lot on June 13 if the statement was made by someone outside the courtroom. The reason for the hearsay rule is that the person who made the statement outside the courtroom is not subject to cross-examination regarding whether or not the statement is true. That is a simple example of hearsay.

If the statement is offered for another purpose other than its truth, then it may be admissible. If one of the issues in the litigation is whether or not the person who heard that statement should have done something as a result of it being icy, then the statement may be admitted for the purpose of proving notice on the part of that person if it can be proven by other evidence that it was, in fact, icy on that day. In that case, the statement is admissible to show only notice and not the fact that it was, in fact, icy. The reason why it is admissible for that purpose is because it is not hearsay (not offered to establish the truth of the matter asserted). .

There are also exceptions to the hearsay rule. In a number of situations, a statement or assertion may be technical hearsay, but because of other factors may still be admissible in a courtroom proceeding. Two exceptions that I find particularly interesting are "dying declarations" and "spontaneous utterances".

With regard to dying declarations, in a prosecution in which the death of the declarant of the statement is the subject of the criminal charge, any statement made by the declarant while the declarant was conscious of his pending death, concerning either the cause of his injuries and death or the circumstances surrounding the death, is admissible. Section 806(2) of the Evidence of Code recognizes a dying declaration under Connecticut law. The exception to the hearsay rule for a dying declaration is limited to criminal prosecutions for homicide only.

The other requirement that must be satisfied before a dying declaration is admissible is that the person who makes the statement must be the victim of the homicide that serves as the prosecutorial basis, and, that at the time the person made the statement or affirmed it, the declarant was "conscious of his impending death". The declarant must believe his death is imminent and that he has abandoned all hope of recovery.

Evidence may be introduced with regard to the consciousness of impending death by showing statements of the declarant to that effect, or by showing circumstantial evidence such as the administration of last rites at or near the time of the statement, by introducing a physician's prognosis which has been made known to the declarant or simply by testimony showing that the severity of the wounds of the declarant were such that death was reasonably certain.

If a declarant makes a statement at a time when he has not expressed a cognizable feeling that he knows that death is a certainty, that statement may be affirmed by him at a later time in a situation where he knows that death is imminent. In other words, a declarant does not have to issue a dying declaration immediately after the event which caused his injuries and ultimately his death, but may give a statement at a later time prior to dying of other causes. He may also reaffirm his earlier statement prior to dying of other causes. Dying declarations are thus admissible, even though hearsay, if they meet the requirements of the Code.

Another hearsay exception is found in spontaneous utterances. Section 803(2) indicates that spontaneous utterances are not excludable under the hearsay rule. The Code refers to a spontaneous utterance as a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition". Examples of spontaneous utterances are usually statements which are made after a conflict, accident or other event which is likely to cause a state of excitement on the part of the declarant. Connecticut Courts have stated that the event or condition during which the spontaneous utterance is rendered must be sufficiently startling, so "as to produce nervous excitement in the declarant and render his utterances spontaneous and unreflective".

Again, while a spontaneous utterance may fit the definition of hearsay which would render it otherwise inadmissible, the circumstances under which it was uttered might bring the statement within the spontaneous utterance exception of the hearsay rule. That would make the statement admissible to prove the truth of its assertion.

The reason why the exceptions to the hearsay rule discussed above are admissible is because the whole issue of hearsay is based primarily upon reliability of the statement. A statement which is made outside the courtroom is generally considered unreliable and inadmissible since we have no basis for testing its validity without cross-examination. The law, however, has singled out several instances which are considered exceptions to the hearsay rule because they are rendered under circumstances which would make them generally reliable. The law has determined that persons who are about to die usually tell the truth. The law has also determined that if persons speak while excited without having a chance to really think about what they are saying, their statements are spontaneous, unreflective and are generally a truthful expression of an incident that has just occurred.

There are many other exceptions to the hearsay rule, all of which are deemed exceptions by virtue of the fact that they are reliable because of either the situation under which they are rendered or because of some other reason making them more reliable than simple assertions of hearsay. Other examples are a statement of then-existing physical condition, a statement of then-existing mental or emotional condition, a statement for the purpose of obtaining medical treatment or advice pertaining thereto, public records and reports, statements in learned treatises, statements in ancient documents in existence for more than 30 years, published compilations, statements in the family bible, personal identification of witness of his own name or age, statements concerning ancient private boundaries, reputation of a past generation and statement of pedigree and family relationships. Some of the hearsay objections require that the declarant be unavailable, some require that the declarant be available and some have no requirement of either availability or unavailability.

What I find interesting about the laws of evidence as they pertains to the trial of legal issues is that the law has developed over a considerable period of time and is based upon a common sense approach keeping in mind that most evidence will be admissible if there is an opportunity for cross-examination and, if there is not such an opportunity, evidence may still be admissible if there is some basis for validating its reliability. The law in this country has been in existence for well over 200 years and, despite the fact that there is a certain stability in legal interpretations, the law is constantly evolving, adjusting to changes in morals and values.

The hearsay objection on many legal television shows that I have seen is sometimes correctly used and indicates to me that the producers of the show employed legal advisors to make sure they got it right. More often, however, the hearsay objection is incorrectly made and incorrectly used.

Now that you have some knowledge of the hearsay rule, the next time you hear such an objection in a movie or on television, try to determine if the statement is hearsay and, if so, is it still otherwise admissible.

Robert Mirto is a Orange resident with a private practice in West Ha