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What is Hearsay and How Does it Impact my Personal Injury Case?

Most everyone who has paid any attention to the legal system has heard the legal term "hearsay." Hearsay is defined as an out-of-court statements introduced to prove the truth of the matter asserted. Usually, that out-of-court statement is made by a third party not present in the courtroom at the time the witness is testifying. An example would be as follows:

Plaintiff's lawyer: "Mr. Smith, was your wife with you when you observed the accident?"

Mr. Smith: "Yes, she was standing right next to me."

Plaintiff's lawyer: "Mr. Smith, did she say anything to you at the time of the accident?"

Mr. Smith: "Yes."

Plaintiff's Lawyer: "What did she say to you?"

Defendant's Lawyer: "Objection."

The above objection would be proper. Plaintiff's lawyer is trying to get Mr. Smith to testify as to what Mrs. Smith said and out-of-court. Clearly, the jury would like to know what it was that Mrs. Smith said--perhaps she saw exactly how the accident occurred and what she said would helpfully illustrate the facts. However, Mrs. Smith is not in court, so the hearsay objection is sustained and Mr. Smith may not answer that question.

The main reason that hearsay is excluded as evidence is that the person who made the out-of-court statements is not there to be cross-examined. There is no reliable mechanism for determining the authenticity or credibility of the statement. We don't know whether the statement was truly made or whether the person who made the statement had actual knowledge of the facts. We have an adversarial trial court system in the United States, which means every witness gets to be cross-examined. Each lawyer has the opportunity to ask questions of every witness. To allow an out-of-court statement for the truth of the matter asserted would mean that the opposing lawyer would have no ability to confront that witness.

There are, however, exceptions to the hearsay rule, and they have all evolved on the basis of being credible. That is, because of some other fact or circumstance, the out-of-court statement is generally considered reliable. Some examples include business records, excited utterances, and dying declarations.

The main reason hearsay comes up is that witnesses were not properly identified or interviewed soon enough after the accident occurred. The injured party may have lost track of who the witnesses are or may simply have a difficult time finding the witnesses. Another common issue is that too much time has passed since the accident, and the witnesses simply do not have a good recollection of the facts. So, instead of properly bringing the witness in to testify as to what he or she observed at the accident scene, another witness, who observes the out-of-court statement, attempts to bring it into his or her own testimony. The result is an objection to the admissibility of that evidence.

If you have been injured due to another's negligence, I highly recommend you retain a competent Massachusetts personal injury lawyer as soon as reasonably possible after the accident, so that he or she may identify and speak with the witnesses before too much time has passed.

Categories: Personal Injury, evidence

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