The Best Method for Handling the Hearsay Evidence Rule and Objections
The hearsay evidence rule has come up in every single mock trial case I’ve seen. It’s such an important rule that students in law school spend weeks learning it!Since it’ll likely show up in your trial, I’m going to tell you what you need to know to handle it confidently.
The Hearsay Evidence Rule And Why It Exists
The hearsay evidence rule is: Evidence of an out-of-court statement is not admissible if it is being offered for the truth of the matter stated. …And of course there are about a dozen exceptions to the rule.
The point of the hearsay rule is to make sure that only reliable evidence is used to decide a case. Evidence is reliable if it is coming from a witness in court, who has taken an oath to be truthful. Also, when a witness is on the stand, the credibility of his or her testimony can be tested through cross-examination. We don’t have a chance to test the reliability of something someone said outside of court.
First Step: Is the Evidence Hearsay?
Hearsay is an out-of-court statement that is offered in court for the truth of the matter stated.
Let’s break this downinto 2 parts.
1. Out-Of-Court Statement
An “out-of-court statement” isanything other than what’s being said by a witness on the stand in court. A statement obviously includes things people say, but it can also mean something that was written.
2. Offered for the truth of the matter stated
After you’ve determined there’s an out-of-court statement at issue, think about whether it’s being offered for the truth of the matter stated.
Start by asking yourself what is being said by the person making the out-of-court statement. This is “the matter stated.”
Then ask yourselfwhy are you (or opposing counsel) isoffering the evidence.Is it being used to provethatwhat the personsaidis true? Or is it being used for some other purpose?
Here are two examples to illustrate the difference.
Example 1: Statement NOT Offered for the Truth of the Matter
The prosecution calls the investigating officer. During the officer’s direct examination, he testifies that he spoke to an eyewitness who said that she saw the defendant running away from the crime scene.
Is the prosecution really trying to prove that the defendant was running away from the scene of the crime?
Often, the investigating officer testifies to someone else’s out-of-court statement not to prove the truth of the matter, but to explain the officer’s subsequent actions. So, if an eyewitness told the officer that the defendant was running away from the scene of the crime, the officer probably went to go investigate the defendant. The out-of-court statement isn’t being used for the truth of the matter (that the defendant was running away from the scene), but to show what the officer did next (investigate the defendant).
In this example, the “truth of the matter” is that the defendant was running away from the scene. But the prosecution is not using the eyewitness’s statement to prove that the defendant was running away from the scene. Rather, the prosecution is using this statement to explain the officer’s subsequent action of investigating the defendant. The statement therefore does not violate the hearsay evidence rule.
Example 2: Statement Offered for the Truth of the Matter
Assume that the defendant’s defense is that at the time of the crime, he was out of town, on a road trip. The defense wants to introduce GPS records that show that the defendant’s vehicle was hundreds of miles away from the crime scene of the at the time the crime occurred.
The GPS records state the location of the defendant’s car at a given time, so it is an out-of-court statement. And the defense is offering it for the truth of the matter because they are using it to show that the defendant was at a particular location when the crime occurred.
Second Step: If the Evidence is Hearsay, Is There an Applicable Hearsay Exception?
There are probably about a dozen hearsay exceptions set out in your Rules of Evidence, but here are some of the most commonly used ones.
1. Admission by a Party Opponent
A hearsay statement made by a party to the case, offered by the opposing party, is admissible. The statement doesn’t necessarily need to be an “admission”. For example, under the Simplified Rules of Evidence in California high school mock trial, this exception applies to “any statement” made by a party and offered by the opposing party.
In a criminal mock trial case, this exception generally works only for statements made by the defendant and offered by the prosecution. Since “the People” don’t make statements, the defense does not really have an opportunity to take advantage of this exception to the hearsay evidence rule.
2. Business Record Exception to the Hearsay Evidence Rule
For this exception to apply, the party offering the evidence must show three things:
i. The Record was Made in the Ordinary Course of Business
This means that the record is one that the business typically makes, and it wasn’t specially created for your case. Examples of records made in the ordinary course of business are GPS records, cell phone records, and receipts.
ii. The Record was Made at or Near the Time of the Event Being Recorded
An example is a GPS database that tracks where people are at a certain time. The database records locations of people being tracked within seconds of them being present at a given location.
iii. The Sources of Information in the Record, and the Method of Preparing the Record, Are Trustworthy
In a real trial, you would have testimony from a custodian of records. This is someone from the company that makes the records. The person would testify about how the records are made, about the sources of information in the records, that the records made in a trustworthy way, and that the events are recorded at/near the time they occurred.
In mock trial, you typically will not have someone from the business to lay that foundation. So you are left with just your arguments! If you’re offering the evidence, you might argue that the manner in which the records (say, cell phone/GPS records) are made, is common knowledge. For example, you could argue that cell phone calls are tracked using cell signals, and that phone companies commonly maintain a database of all calls made and received by a particular phone number.
Recap: Two-Step Analysis for Handling the Hearsay Evidence Rule
The hearsay evidence rule boils down to two steps:
- First Step: Is the statement hearsay to begin with?
- Second Step: Is there an applicable exception to hearsay?
Almost always, the first step of the analysis depends on whether the statement is being offered for the truth of the matter (in which case it is hearsay) or whether it is offered for some other purpose.
If –and only if – you actually do have hearsay evidence, the second step is to consider whether a hearsay exception applies.
Once you understand these two steps and how to apply them, you’ll be able to make and argue hearsay objections with confidence.
When to Make a Hearsay Objection
You want to object the very first time opposing counsel offers evidence of an out-of-court statement. For the defense, more often than not, this will happen when the prosecution conducts the direct examination of the investigating officer.
Listen for questions such as, “What did ___ say?” or “What did __ tell you?”
And listen for a witness to give testimony such as, “___ told me….” or “I heard…”
I recommend making an objection when an out-of-court statement is offered, whether or not the statement is being offered to prove the matter stated. I recommend doing this to test your opponent to make sure they can identify whether something is hearsay or not.
If your opponent can’t articulate that evidence is not hearsay when it is not offered for the truth of the matter, the mock trial scorers see that your opponent does not understand the hearsay evidence rule as well as you do. But once you’ve demonstrated this to the scorers, there is no need for you to object every single time opposing counsel tries to introduce an out-of-court statement that’s not offered for the truth of the matter. While lawyers might continue objecting in a real trial, there’s not much to gain out of repeatedly objecting after it’s been shown that your opponent has a limited understanding of the hearsay rule. Object only if the out-of-court statement is damaging to your case. Don’t object to kick your opponent while they’re down. That’s not cool.
On the other hand, if your opponent does explain that a statement is not hearsay when it’s not offered for the truth of the matter, don’t object when they offer that kind of evidence again. You know they’ll be able to defeat the objection, and you’ll annoy the judge and your scorers.
However, if opposing counsel doesoffer an out-of-court statement for the truth of the matter, then you absolutely should object each time. This shows you know the difference between a true hearsay statement and a statement that’s not being offered for the truth of the matter. And when evidence is truly hearsay, it is appropriate for you to make opposing counsel show (or at least try to show) that a hearsay exception applies.
How to Make a Hearsay Objection
- Objection, Your Honor. The witness has testified to hearsay.
- Objection. The question calls for hearsay.
Arguing in Support of a Hearsay Objection
When arguing either for or against the objection, you’ll need to keep in mind the two steps of the hearsay analysis.
Step One: Is there hearsay evidence?
If you are objecting, you want to argue that yes, the evidence is hearsay. For example:
- Your Honor, the witness has testified to an out-of-court statement that the defense/prosecution is offering to prove the truth of the matter stated.
- The question calls for evidence of an out-of-court statement that is offered to prove the truth of the matter.
Step Two: Is there an applicable hearsay exception?
If you made an objection, and opposing counsel says that an exception to hearsay applies, you need to be able to explain why it does not apply. For example:
- Your Honor, the statement is not being offered to explain the witness’s subsequent action; rather, it’s being offered for the truth of the matter.
- Your Honor, the business records exception does not apply because a proper foundation has not been laid. There is no evidence of how or when the record was prepared, so the prosecution/defense has not demonstrated that the sources of information and method of preparation are trustworthy.
Opposing a Hearsay Objection
Step One: Is there hearsay evidence?
If you are offering the evidence, consider whether you can argue that the statement is not being offered for the truth of the matter. For example:
- Your Honor, the evidence is not offered to prove the truth of the matter stated. Rather, it is being offered to explain the officer’s subsequent action.
Step Two: Is there an applicable hearsay exception?
If you are offering hearsay evidence, you need to find an applicable exception to the hearsay rule. For example:
- This is an exception to the hearsay rule, Your Honor. The statement is an admission by a party opponent.
- Your Honor, an exception to the hearsay rule applies. This document is a business record and is therefore admissible.
- [A more detailed argument for the business record exception] Your Honor, this action is limited to the facts and evidence set forth in the mock trial case packet. The case packet does not include any evidence of the source of information or method of preparation for this document. The prosecution/defense [whichever side you’re on] would be prejudiced without this evidence. The Court should therefore allow its admission under the business records exception to hearsay.
I’ve prepared an infographic to help you remember the steps of the hearsay analysis and to give you some sample words to say when making and arguing objections. I hope it helps! Please feel free to print and share with your team or on social media.