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Hearsay in Court Explained From The Depp vs Heard Trial

Depp vs Heard Verdict Announced

If you followed the Johnny Depp / Amber Heard defamation trial, then you saw that Johnny Depp was awarded $10.35 million (out of a requested $50 million) and Amber Heard was awarded $2 million (out of a requested $100 million). So, Johnny Depp netted $8.35 million. 

What might affect them more than the money is that Johnny Depp won big in the court of public opinion. During the trial, new social media memes were published daily, often highlighting the sheer absurdity of parts of the trial. In the court of public opinion, Depp and his attorneys were perceived as good-humored and well prepared and Heard and her attorneys seemed flustered and ill-prepared. One of the more common examples of this involved the seemingly constant invocation of the rule against hearsay.  

So, What Is Hearsay?

Even a casual observer could not help but notice the repeated objections on hearsay grounds. These objections are often raised when a lawyer asks a witness a question or a witness testifies regarding something someone else said outside of court. Depp’s lawyers seemed to ask questions and make objections with skill and tact, and Depp himself, while testifying, remained cool and calm despite the barrage of interruptions. Heard and her lawyers did not, and their frustration was on full display. 

Defining The Meaning of Hearsay

In basic terms, hearsay is a statement made outside of court, offered for the truth of the matter asserted. Hearsay, and rules regarding hearsay, are some of the most misunderstood and misapplied concepts in the Rules of Evidence. Even judges routinely get them wrong. In a quarter century of practicing law, I wish I had a dollar for every time I’ve heard a judge instruct a witness that they could not testify to what another person said, unless that person was also there to testify. Unfortunately, this is an oversimplification of the hearsay rule and serves to exclude from evidence out-of-court statements that are not actually hearsay. 

What Are the Requirements for Hearsay?

1. The statement is made out of court. 
It doesn’t matter who made the statement or if the person is present in court to testify. Even if the declarant is present in the courtroom, their out-of-court statement might be hearsay if the second requirement is met.

2.  The statement is offered for the truth of the matter asserted. 
“The truth of the matter asserted” does not refer to the truth of whether the statement was actually ever made. The “truth of the matter asserted” refers to the content of the statement itself. Thus, for a statement to constitute hearsay, it must be a statement that could be characterized as either true or false. Let’s look at some hearsay examples:  

“Sally said the sky is blue.” – True
“George said that dogs can fly.” – False
“Mason asked me to go to the store.” – Neither

The first two examples assert matters that can be judged for truthfulness and therefore might be hearsay. The last example can be neither true nor false because it is a request, not an assertion of fact, and therefore can never be hearsay. It is the truth of the matter asserted within the statement itself, not the truth of whether the statement was made that counts.

3. The statement must be offered into evidence for the purpose of proving the truth of the matter asserted. 
Our second example, “George said dogs can fly” would only be hearsay if it is offered for the purpose of convincing the jury that dogs can fly. If it was offered for another purpose, perhaps to show that George is mentally ill, then it is not hearsay.

Whether a statement meets the definition of hearsay does not answer the question of whether it is admissible as evidence because the Rules of Evidence contain a multitude of exceptions to the rule against hearsay. And even if a statement is not hearsay, it may still be inadmissible based on other rules of evidence.

Unfortunately, misunderstandings about the rule against hearsay on the part of lawyers and judges sometimes result in important, relevant evidence being excluded or inadmissible hearsay being allowed. If you have an important hearing coming up, the lawyers at Morrow Porter Vermitsky & Taylor have the knowledge and experience to make the appropriate arguments and objections to ensure that the rules are properly applied.