Hearsay

Hearsay testimony is secondhand evidence; in hearsay, witnesses talk not about what they know personally, but about what they have been told by other persons. For instance, if a defendant is charged with uttering certain words, witnesses are permitted to testify that they heard the defendant speak the words. Subject to the many exceptions to the rule, witnesses may not pass on information of which they are personally unaware.

As it is applied to schools, there are times when educators may overhear statements and charges being made by students, colleagues, or others. School personnel and administrators may also learn that students or groups of students have made threats against classmates or school personnel. In such cases, educators must exercise discretion while rendering sound and legally defensible judgments that affect the students under their care. Further, on rare occasions, students and school personnel may engage in criminal activity, such as murder, sexual improprieties, arson, burglary, or robbery, that may warrant having school officials being called to testify in court.

Insofar as education is a function of state governments, school personnel must be aware and knowledgeable of the law of hearsay and how it impacts public and private school systems. This entry provides a brief introduction.

The Rule

The Hearsay Rule defines hearsay and provides for numerous exceptions and exemptions that exceed the scope of the rule itself. Since its definition varies across jurisdictions, most evidentiary codes defining hearsay adopt verbatim the rule as described in the Federal Rules of Evidence Rule 801. Historically, the rule against hearsay prohibits the use of a person’s statement unless the individual making the statement is brought to court to testify under oath, where he or she may be cross-examined. According to Hearsay Rule 802, hearsay is inadmissible except as provided by rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

The rules about hearsay are derived from the Sixth Amendment, which defines the rights of accused in criminal prosecutions:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The right to be “confronted with the witnesses against him” was made applicable to the states via the Fourteenth Amendment in Pointer v. Texas (1965). Pursuant to this case, the defense, under the Sixth Amendment, must have an opportunity to confront and cross-examine witnesses. The Confrontation Clause relates to the common-law rule that prevents the admission of hearsay; in other words, testimony by one witness as to the statements and observations of another person is generally inadmissible but for the many exceptions to the rule. The rationale behind this rule is that defendants have no opportunity to challenge the credibility of and cross-examine the person actually making the statements against them. The Confrontation Clause defines the right of a defendant to confront the witnesses against him or her. Witnesses who give formal statements, depositions, or affidavits are conscious that they are bearing witness and that their words will impact further legal proceedings.

Exceptions to the Rule

Certain exceptions to the Hearsay Rule are permitted. For instance, admissions by defendants are admissible, as are dying declarations and exceptions for business records. However, the Supreme Court has held that the Hearsay Rule is not exactly the same as the Confrontation Clause. Hearsay may be admitted although it is not covered by one of the longrecognized exceptions. In other words, prior testimony may sometimes be admitted if the witness is unavailable. In Crawford v. Washington (2004), the Supreme Court increased the scope of the Confrontation Clause in trials. Justice Antonin Scalia’s opinion made any testimonial out-of-court statements inadmissible if the defendant did not have the opportunity to cross-examine the accuser.

The law of evidence governs the use of testimony and legal exhibits or other documentary material which is admissible in resolving a dispute. School personnel have a responsibility when it comes to reported and overheard conversations. Knowledge of hearsay statutes will enable educators to perform their respective duties efficiently and effectively within the boundaries of constitutional, statutory, and case law.

Doris G. Johnson

See also Deposition

Further Readings

  • Monnat, D. E. (2006, January/February). The kid gloves are off: Child hearsay after Crawford v. Washington. NACDL News, p. 18. 
  • Legal Information Institute, Cornell Institute. (n.d.). Federal rules of evidence (LII 2006 ed.). Retrieved November 22, 2006, from http://www.law.cornell.edu/rules/fre/rules.htm;

Legal Citations

  • Crawford v. Washington, 541 U.S. 36 (2004). 
  • Pointer v. Texas, 380 U.S. 400 (1965).