What You Should Know about Evidence Rules and Hearsay

​​Q: I watched a courtroom trial recently and was surprised by how much time the court spent deciding what kinds of evidence would be "admissible" and "inadmissible." Why shouldn't jurors hear every bit of evidence each side wants to present, and then make up their own minds what evidence to consider in reaching a verdict?
A: Under the American legal system, which has its roots in English law, a trial is conducted as a contest between opposing parties. Each side tries to present the most forceful and persuasive evidence possible to support its position, and tries to discredit the evidence presented by the other side. The judge or jury is supposed to arrive at a fair verdict by weighing the relative strength and credibility of the evidence presented by both sides.

Over time, judges and legal scholars have found that certain kinds of evidence and certain ways of asking questions and presenting information can interfere with a fair trial by prejudicing a jury or giving one side an unfair advantage over the other. It's all about fairness. Based on centuries of experience, our courts have established guidelines called "rules of evidence" which both sides must follow. Evidence, including the testimony of witnesses, may be "admitted" in court and considered by the judge or jury in deciding a case only if it is presented according to the rules of evidence.

These rules require, for example, that physical evidence (fingerprints on a weapon, bloody clothing, etc.) is only admissible if it has been carefully handled and protected from tampering while in police custody.

These rules also disallow certain kinds of evidence that don't permit the other side a fair chance to challenge, and evidence which tends to emotionally prejudice jurors out of proportion to its factual importance in the case. Otherwise, without such safeguards, there is a risk that the physical evidence could be bogus.

Q: What is "hearsay" evidence, and why is it usually not accepted?
One type of evidence that usually is not allowed by the rules of evidence is "hearsay." Hearsay is what might be called "second-hand" evidence. It usually involves a witness testifying not about what he or she personally saw or heard, but to establish as a fact something someone else told the witness. Hearsay evidence is generally not admissible because the other side doesn't have a chance to confront the person who is being quoted to challenge the accuracy of the statement or the credibility of the person who made it. The concept is similar to anonymous Internet posts; information from an unknown or unavailable source is not with much at all.

For example: During a bank robbery, a teller, Ms. A, is the only person who gets a good look at the robber. She tells Officer B that, although the robber was wearing a mask, "he looked like Mr. C," (a former bank employee). Mr. C is arrested and tried for the robbery. Shortly thereafter, Ms. A moves out of town and cannot be located to testify about what she saw. At the trial, the prosecutor calls Officer B as a witness and asks him to tell the court what Ms. A said about the identity of the robber. Before the officer answers that question, the defendant's lawyer would certainly object to the admission of his answer into evidence because it would be "hearsay" evidence. In other words, Officer B is being asked to identify Mr. C. as the robber based on what Ms. A. said to him. The judge would almost certainly sustain the objection, and refuse to allow the officer to repeat what Ms. A said.

Q: Why shouldn't Officer B's testimony be admitted by the Court?
Because it is unfair for the jury to be told about Ms. A's identification of the defendant unless the defense has an opportunity to cross-examine Ms. A in front of the jury. How long and from what distance did she see the robber? How good or bad is Ms. A's eyesight? What features did she use to make her identification? How long had it been since she last saw Mr. C? Might she have a personal grudge or prior relationship with  Mr. C? Might the police have influenced her identification? Unless the defense has a chance to ask Ms. A those types of questions in front of a judge or jury, questions that might raise serious doubts about the accuracy of her identification and/or her credibility, the court cannot allow the prosecution to introduce evidence about her identification of Mr. C.

There are certain conditions under which hearsay evidence is admissible for limited purposes. For example, business records made in the ordinay course of business may be introduced into evidence, even when the person who created those documents is not available to testify.


This "Law You Can Use"  consumer legal information column was provided by the Ohio State Bar Association (OSBA). It was originally prepared by the OSBA and reviewed and updated by James D. Curphey of the Columbus office of Porter Wright Morris & Arthur LLP.​​

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.



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