‘Hearsay’ is an evidentiary term usually referring to  an assertion of fact made outside of court which a party attempts to introduce as evidence in court to prove the truth the assertion. The federal rules of evidence and the rules of evidence of each state have their specific definitions of what hearsay is, and when it is or is not admissible in a court proceeding. Hearsay is often excluded from admissibility in court proceedings based on the concept that evaluating the credibility of the assertion depends upon evaluating the credibility of a declarant (the person making the assertion) who is not testifying and who may not even be in the courtroom. But litigants and courts must be careful in determining whether a statement, even if allegedly made by another person, is actually hearsay under the applicable rules, and, if it is, whether some exception applies. Many remarks are not assertions of fact by the declarant, and so are not hearsay. In addition, there are a number of exceptions which may apply, depending on who is seeking to introduce the statement, the purpose in introducing it, and the nature of the proceeding.

In the recent Tennessee case of State of Seals, E2013-00616-CCA-R3-CD (Tenn.Crim.App. 5-9-2014), the Court of Criminal Appeals again noted that, by statute, reliable hearsay is admissible in a sentencing proceeding as long as the defendant has a fair opportunity to rebut it. In the Seals case, the defendant had pled guilty to aggravated burglary and was contesting the amount of restitution. The defendant had taken a safe that contained cash and other items. At the sentencing hearing, the victim testified he had not counted the money in the safe, but that it contained money put there by his late wife. The victim then testified about the amount of money his wife told him she had in the safe. Because the state was attempting to prove the amount of money which had been stolen, and the victim’s wife’s statement had asserted the fact of how much was in the safe, the state was attempting to use the out of court statement to prove a fact asserted by that statement. The defendant objected. However, as the trial court ruled and the Court of Criminal Appeals affirmed, this is expressly permitted at a sentencing hearing by Tennessee statute. The victim’s wife had no known reason to lie to him at the time she made the statement about how much was in the safe. And the defendant had the opportunity to testify about his own recollection of what he found in the safe. So the out of court statement was properly admitted. That does not mean of course that the trial court, as finder of fact, had to accept the statement as true. Just that it could consider the statement along with all other evidence presented in making its findings.

For more information on how evidentiary rules may affect the admissibility of a particular statement at a particular proceeding, contact The Lanzon Firm.