Hearsay: Testimony that is not allowed in court.

When you were a kid and a friend of yours made an incredibly unbelievable statement, their usual response to your questioning how they knew it to be true was something like, "My mom said it's true!" This appeal to authority was useful because not only was it to an adult, but more importantly, the alleged source of the information wasn't there, so you just had to take your friend's word for it..

In Texas personal injury cases, sometimes lawyers try to slip "evidence" like this into the courtroom. In this article, Texas injury lawyer Michael Grossman will explain what you need to know about hearsay.

Questions Answered on This Page:

• What is hearsay and how does it work under Texas law?
• Can things heard via hearsay be used in court?

Why is hearsay regarded as bad?

It might be a witness's statement that "I heard from Tom that the plaintiff isn't really hurt that bad" or "rumor has it that the plaintiff injured herself on purpose." The obvious problem with these statements is that there is absolutely no way to prove or disprove them. Who is Tom? Where is he? How does he "know" that you're not injured? And who can refute rumors from nameless people?

In a nutshell, that's the problem the hearsay rule tries to address. With some exceptions, any statement made out of court cannot be entered into evidence. Now, let's make a quick point, though: many lawyers (and some judges) are woefully terrible at applying this to courtroom evidence. The exact contours of the rule and its many exceptions are too dense and voluminous to explain here. Nonetheless, we'll try to give you a basic rundown.

Out-of-court statements are almost always not reliable

Let's assume for a minute that a witness gets on the stand and claims that she heard from "Bob" that YOU were responsible for the accident that caused your injuries. Not only is this "bad" testimony against you, it has no place in a courtroom in the first place. Trials are about litigating who's right and who's wrong. To determine that, jurors need evidence to weigh against each side. Courts understand that the best test of whether someone is telling the truth is to give the jury the chance to watch them speak. Mother Nature has given us the ability to judge people's reactions to questions. If we were able to put Bob on the stand, and he's asked "Do you think the plaintiff caused the accident?"

• **Bob fidgets, stammers a bit, wipes away sweat from his brow with a shaky hand, and weakly answers**: "Yes, I do."

But what if he answers the following way?

• **Bob sits upright, looks at the jury, and with a clear voice states**: "Yes, I do."

Clearly, the same answer, the exact same words, the same person. But the jury would likely assume Bob is lying by his reaction in the first example, and would be more persuaded by the second. That's why we want all the "Bobs" out there who make accusations to be present in the court so the jury can make their own credibility assessments. But watching reactions for credibility of the witness isn't the only issue. How do we even know Bob exists? Does he have a criminal record? Does he have a stake in the litigation? Is he dating the defendant? If "Bob" isn't in court, the opposing attorney cannot ask these key questions.

The point is that we owe it to the jury and to you to get only the most reliable testimony out there.

The hearsay rule is famous for its many exceptions.

Now that you've got a little bit of a grasp on the rule, you should at least be aware that there is a laundry list of exceptions. They can mostly be boiled down to two categories: 1) testimony that only relates to ancillary parts of your case, and 2) your own words against you.

Ancillary testimony: If everyone who had anything whatsoever to do with your case had to testify at trial, it would be a long process indeed. Instead, some people can "testify" through affidavit form. An easy example is through medical records, your doctor's impressions of your case come through his or her notes about your condition. If your lawyer doesn't need for the doctor to testify live in court, a simple affidavit to attest to the validity of the records is sufficient. So even though the statements your doctors makes in your medical records are her words about you, the fact that she effectively "signed off on them" by signing an accompanying affidavit makes her statements about you admissible as good evidence. Conversely, if you didn't have such an affidavit and you instead wanted to get on the stand and simply tell the jury, "My doctor said it's the worst injury she's seen in years," the jury would have to disregard that evidence as hearsay. See the difference?

Your own words: Even though the general rule on hearsay is that a witness shouldn't be able to testify about what someone else said to them, it's only fair if the plaintiff or the defendant said something outside of court that their own words can be used against them. For example, if the defendant in a car wreck case cried out "I am so sorry, I did this!" after an accident, they shouldn't be able to hide behind the rules of evidence to silence... themselves.

Your lawyer needs to know the hearsay rule very well.

This rule and its exceptions confounds lawyers and judges alike. You need an attorney with a firm understanding of the rules of evidence to help your case advance all the way across the finish line. Call Grossman Law Offices today at 855-326-000 for help understanding what your rights truly are.

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