The hallmark of the English-American Common Law system of trials is cross-examination. Once called the greatest engine for the discovery of the truth ever invented, a trial without it is unimaginable in our justice system.
But you can’t cross-examine someone who is not at the trial. Think about it: A trial is a re-creation of something that happened outside the courtroom in time past. Witnesses and documents are brought to the courtroom to re-create the event that gave rise to the trial. Evidence that can’t be cross-examined has no place in that re-creation.
That is why there is a rule against “hearsay evidence.”
When you hear a lawyer say, “I object, calls for hearsay” that lawyer is using the word “hearsay” as a technical term of art. For judges and lawyers “hearsay” means any statement made outside the courtroom offered to prove what it says. That deceptively simple definition takes law students about a semester to grasp and hardly any Hollywood screen writer understands it. But that is nothing. I’ve appeared in front of trial judges who don’t fully understand it either.
Let’s start with an example. We’ll pretend that you were on your way home from work yesterday, driving your car west-bound through an intersection controlled by a traffic light. The passenger side of your car is hit in that intersection by a south-bound car. There are only three witnesses to the wreck; you, the other driver, and a pedestrian waiting to cross the street. You are positive you had a green light and the other driver says he had a green light. Obviously one of you is either mistaken or lying and you are positive it is the other driver. You see the bystander and run over and ask her what she saw and she says to you, “That guy ran a red light!”
As a result of the crash you have a cervical strain which requires you to incur medical bills and wear one of those uncomfortable neck collars for three months. And have your car repaired. The other driver and his insurance company refuse to pay you because they think you ran the red light. The only thing you can do to recover and get a measure of justice is to sue, which you reluctantly do.
A year or so later your case is finally called to trial. A jury of people who don’t know you or the other driver is selected to hear the evidence. Because you are in the courtroom and subject to cross-examination, you will be allowed to testify that you had the green light. The other driver is also in court and testifies that he had the green light and that you ran the red light.
So now the jury has one witness – you – saying you had a green light and one witness – the other driver – saying that you ran a red light. If they believe you, he’ll have to pay you damages. But if they believe him, he won’t have to pay you a nickel. How are they supposed to pick who is telling the truth, especially because both of you have something to gain by your testimony?
But there was a witness with no ax to grind and she told you that the other guy ran a red light. Her testimony will tilt the scales decisively for you.
But there’s a problem. She left the scene right after she talked to you and no one knows where to find her. She’s not in the courtroom and the only way to get her statement to you into evidence is for you to testify about what she said, but she cannot be cross-examined.
Here is how it would unfold in the courtroom:
Your Lawyer: Were there any other witnesses to the wreck?
You: Yes. There was a woman standing on the curb.”
Your Lawyer: Did you talk to her?
You: Yes, I did.
Your Lawyer: What did she say to you?
Opposing Lawyer: I object, Your Honor, calls for hearsay.
The result? You are not allowed to testify about what she told you and the jury must decide the case without knowing what she saw. Why? Because her statement to you, “He ran the red light!” was made outside the courtroom and is offered by you to prove exactly what it says, that he ran the red light.
Sometimes, of course, a lawyer makes a mistake and fails to object to hearsay evidence, but no one would try to win a case hoping for a lawyer to sit on his hands and not object to a question that calls for hearsay evidence. And sometimes, a judge will make a mistake. But no trial lawyer would go to trial merely on the off-chance that a judge might miss the call.
But it does happen occasionally. We’ll be back next time to show you a piece of hearsay evidence that destroyed the life-long successful political career of a United States Senator.