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Evidence: What is Hearsay?

The rules concerning the admissibility or inadmissibility of hearsay are among the most important among the various rules of evidence, and they are also among the most misunderstood. Hearsay is defined under the Pennsylvania Rules of Evidence as "a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted." More simply stated, hearsay occurs when a witness testifies in court about what someone else said, as evidence of a particular fact. For example, if Witness X testifies that the bartender at Dionysus's Den told him that he saw Mr. Defendant at Dionysus' Den five minutes before Mr. Defendant allegedly shot Mr. Victim outside the bar, that would be hearsay. If the bartender himself testifies that he saw Mr. Defendant in the bar, that would not be hearsay; it would be direct eye witness testimony.

Generally speaking, hearsay is inadmissible at trial. The reason for this is to assure the opportunity to cross examine a witness. In the example above, the bartender can be cross-examined only if he actually testifies. He cannot be cross-examined if the bartender's statement comes in through some third party witness. During cross-examination, the attorney representing the alleged shooter may bring out the facts that the bar was very crowded that night, the bartender was extremely busy, the bartender did not actually know the defendant, the bartender did not actually serve the defendant a drink, and that the bartender did not pick out the defendant from a police photo line-up until several weeks later, when his memory would have faded over the course of numerous busy shifts. This may cause the jury to have some reasonable doubt as to whether the bartender actually saw the defendant on the night in question, and that the bartender may have seen the defendant in the bar some other night.

The concept of hearsay is often poorly understood by criminal defendants, especially those who are incarcerated, and have been subjected to grossly inaccurate " prison folk wisdom" from other inmates. Prison folk wisdom posits that any verbal statement from a witness suggesting guilt is hearsay. Thus, only physical evidence or an audio or video recording of the defendant committing the crime falls outside the realm of hersay. For example, a defendant may insist that the testimony of five eye-witnesses describing someone of his age, gender and ethnicity running away from a bank robbery scene is hearsay, as is the witnesses' description of his clothing, which happens to be the same outfit worn by the defendant when apprehended by police a short time later. By contrast, such a defendant will not insist that the physical evidence in the form of money and gun found in his possession is "hearsay." Instead, he will simply come up with a perfectly logical and legal reason why he had a gun and a large amount of fresh $100 bills at the time of his arrest.

There are many exceptions to the general rule that hearsay is inadmissible. These exceptions encompass situations where the hearsay statements have some indicia of reliability. Learning these hearsay exceptions is the bane of second year law students, and it usually takes a while for young trial lawyers to master these rules.

Matt M. McClenahen is a defense lawyer in State College, Pennsylvania, with extensive trial experience. He limits his practice to criminal law. http://www.mattmlaw.com/About-Attorney-McClenahen/

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