What is hearsay?

What is ‘hearsay’? Not a lot of people know. This column will clear it up…

First, what is hearsay? Well, most people think that hearsay is any statement made by a witness (in the witness stand) that was said by another person. That is not true…

Put simply, hearsay consists of two things: 1) an out of court statement; AND 2) a statement offered for its truth.

So, if the statement was not made outside of court or if the statement is not being offered for its truth, then the evidence is not hearsay.

Also, what is the problem with hearsay? Why is hearsay typically excluded from court as evidence? Well, hearsay evidence is generally excluded because the opponent (opposing counsel/party) does not have an opportunity to cross-examine the person who actually made the statement, as someone else is providing that statement in court. In other words, the value of the evidence depends on the credibility of someone who cannot be cross-examined.

This may be confusing. So, ask yourself the following two questions to determine if the statement is actually hearsay: 1) Is the evidence (being given in the witness stand) a statement made by someone other than this witness in this witness stand?; and 2) What is the purpose of making the statement? Is the evidence being said for its truth?

Here is an example of something that it is hearsay: Jack is suing Nancy for damages after she ran his car into a lamppost. To prove losses, he offers an estimate for a $5000 repair cost signed by an auto-repair mechanic. The statement is “damages to the car were $5000”. The person making that statement, the mechanic, is not on the witness stand AND the statement is offered for the truth of its contents…that the damage to the car was indeed $5000.00.

Here is an example of something that is not hearsay: Nancy is charged with the stabbing death of Jack. She claims that she was provoked and takes the stand in her own defence. She states that moments before the stabbing, her friend, Obama, approached her and told her that Jack had assaulted Nancy’s son. The statement is “Jack assaulted Nancy’s son”. The person making the statement is Obama, who is not on the stand. So, it could be hearsay… BUT, the statement is not being offered for its truth. Its relevance lies not in the fact that Jack did indeed assault Nancy’s son but, rather, that it helps to establish that Nancy was provoked, whether or not Obama was telling the truth. This is not hearsay.

Also know that hearsay is sometimes allowed into evidence, anyway. There are several ‘hearsay exceptions’, which will be discussed in a future column.

Like almost everything in law, hearsay has a lot of wrinkles and is anything but simple.

And now you know…

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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