By The Honorable Earl G. Penrod

THE POPULARITY OF COURTROOM SHOWS on television has familiarized many people with the term “hearsay evidence.” However, far fewer people understand how the relatively complicated “hearsay rule” applies in court. Because the application of the hearsay rule may cause evidence to be excluded and may interrupt the flow of testimony, witnesses sometimes become frustrated when confronted with hearsay objections.

Hearsay evidence is defined as an out-of-court statement offered for the truth of the matter asserted, and such evidence is not admissible in court unless there is an applicable exception to the general rule of inadmissibility. To unduly simplify the definition and application, the hearsay rule prohibits a witness from stating in court what someone said outside of court. For example, if a police officer on the stand is asked by the prosecutor, “What happened next?” and testifies, “An elderly woman came forward and said ‘the butler did it,’” that would be hearsay.

The specific ruling on the objection will depend upon a number of factors and whether an exception applies, but the statement “the butler did it” was made by an elderly woman outside of court and it is now being repeated in court by the police officer, most likely as evidence about what happened. Assuming no exception applies, the objection may well be sustained. But, why?

In a nutshell, the exclusion of hearsay is to help ensure that evidence in court is as trustworthy as possible. In our adversarial court system, there is a strong preference for having witnesses testify in court not only so that they must take an oath, but also so that they may be subject to confrontation and cross-examination.

With hearsay evidence, there are actually two witnesses involved: the one testifying in court and the one who made the out-of-court statement. If the out-of-court witness is not required to testify under oath and undergo cross-examination, the finder of fact will not have the opportunity to fully and properly evaluate the trustworthiness of that evidence.

Tip to testify: Witnesses should not become frustrated by hearsay objections, because the hearsay rule helps ensure the credibility and trustworthiness of the evidence submitted in the case.

The Honorable Earl G. Penrod is a Judge of the Gibson Superior Court in Indiana.

This article originally appeared in the October 2015 issue of The LEL.