Mike Rafi’s article “This is An Out-of-Court Statement About Hearsay” was published in the Georgia Young Lawyer’s Division Review. The “YLD” Review is a state-wide publication available to and read by all of the members of the Georgia State Bar.
The hearsay rule is a rule of exclusion—meaning the rule keeps juries from hearing certain evidence. Hearsay evidence, which is any information that was not learned first-hand, is generally deemed to be unreliable by courts. So, juries can only hear certain kinds of hearsay, which are exceptions to the general hearsay exclusion rule. Hearsay is extremely important to trial lawyers (and their clients) because they must ensure that the jury actually hears important evidence, so lawyers must consider whether evidence is hearsay, and if so, how to make it fit under an exception.
Here is Mike’s article:
This is An Out-Of-Court Statement About Hearsay
Hearsay is considered one of the most amorphous and confusing legal rules—rivaled most often by the Rule Against Perpetuities. It is vital, though, for trial lawyers to know what hearsay is, when it can be admitted as evidence, and when it cannot. Without a full understanding of hearsay, lawyers may not be able to admit critical information into evidence or prevent the opposition from admitting objectionable hearsay evidence. Hearsay—and a lawyer’s understanding of it—can make or break a case.
Georgia law defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
[1] Statements can be “oral or written” or “nonverbal conduct” so long as the person making an “assertion.”[2] One reason identifying hearsay is important is because “if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.”[3]
One challenge of effectively navigating hearsay is that some hearsay statements are admissible and some are not, based on the circumstances surrounding the statement. Generally, there are three categories of statements that are hearsay, but may nevertheless, be properly used as evidence. First, statements made by someone who is a party to the lawsuit, which is offered as evidence against that party, are not excluded as hearsay.[4] Second, there is a laundry list of statements that are admissible regardless of who made them, because these statements are considered reliable enough for a jury to consider[5]—for one, records of regularly conducted activity, commonly referred to as the business record exception.[6] Lastly, certain hearsay statements are admissible when the person who made the statement cannot come to trial, will not come to trial, or testifies at trial that she does not remember the statement.[7]
Hearsay statements can also be included within another hearsay statement—this is called “hearsay within hearsay” or “double-hearsay”. One common example of hearsay within hearsay is a police report where the officer wrote what a witness said. The police report, on its face, is hearsay. The police officer’s account of what the witness said is also hearsay, and because it is within the police report, it is hearsay within hearsay. In these situations, statements are admissible so long as “each part of the combined statement conforms with an exception to the hearsay rule.”[8] In the example above, the police report is likely admissible under the business records exception, but not the witness’ statement (which would need to be redacted). The witness’ statement would need to be analyzed independently to see if it met any hearsay exceptions, and if so, that portion of the report would be admissible as well.
[1] O.C.G.A. § 24-8-801(c)
[2] O.C.G.A. § 24-8-801(a)
[3] O.C.G.A. § 24-8-802
[4] O.C.G.A. § 24-8-801(d)(2)
[5] O.C.G.A. § 24-8-803
[6] O.C.G.A. § 24-8-803(6)
[7] O.C.G.A. § 24-8-804(a)
[8] O.C.G.A. § 24-8-805
