By Collin County Criminal Defense Lawyer Jeremy Rosenthal
As a general rule, if a witness on the stand is repeating what someone else said who isn’t testifying in a case… there are hearsay issues. In trial you have a constitutional right to cross examine someone testifying against you — but you can’t effectively cross examine someone who isn’t there.
For starters, a short blog can’t possibly do the concept of hearsay any justice. Hearsay is one of the hardest topics in evidence and is heavily covered on the multistate bar exam.
The hearsay rule can block damaging statements from being admitted into evidence at a criminal trial. In some cases, such as assault/ family violence cases, the entire outcome can rest on a single hearsay objection. Yeah… It’s THAT important.
The legal definition of hearsay is, “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.”. Clear as mud, right?
For example… Let’s say person A is on trial for theft from a retail store. At trial, the clerk who was there during the incident isn’t present at trial for whatever reason. Instead, the prosecutor calls a police officer who came after the fact and made a report. If the policeman relayed the observations of the clerk (such as A did this, A did that, or A hid something in a bag), this would be impermissible hearsay. This is because A has a right to cross-examine the clerk directly about the clerk’s observations. The law recognizes when one witness relays what is said by someone out of court — it acts as a shield protecting the out of court declarant — and the out of court declarant’s true observations cannot be tested in front of the jury deciding the case.
Hearsay shouldn’t be confused with what is known as an “admission.”. An admission is a statement made by the accused and is non-hearsay.
Again, I can’t emphasize enough how difficult a concept hearsay can be. The U.S. Supreme Court is still constantly refining how the rules work and the Texas Legislature devoted an entire chapter of the Texas Rules of Evidence to the concept of hearsay. It’s important to have a lawyer that understands it too.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.