Hearsay Testimony

The rules of evidence regarding the admissibility of hearsay testimony are complex, but in general, the law treats hearsay as inadmissible evidence. A number of exceptions to this general rule exist, however, and psychologists have conducted research to examine how jurors evaluate and use hearsay testimony in their decision making. No simple conclusions can be drawn at this point from the research literature owing to the large number of variables that undoubtedly influence juror perceptions of hearsay witnesses.

Hearsay is an out-of-court statement made by an individual (the declarant) that is offered as evidence in court by another individual (the witness, but referred to here as the “hearsay witness” for clarity) to prove the truth of the matter asserted. Repeating a declarant’s statement in court is hearsay if the witness is trying to convince the jury that what the declarant said is true, whereas it would not be hearsay if the witness is trying to show that the declarant speaks English, for example. Concerns about the trustworthiness of hearsay arise because the declarant was not under oath at the time of the statement, the demeanor of the declarant while uttering the statement cannot be observed by the jury, and cross-examination of the hearsay witness may not reveal shortcomings in the declarant’s statement. The hearsay rule therefore establishes that hearsay is not admissible except in situations where there is some reason to believe that the declarant’s statement is trustworthy. The Federal Rules of Evidence identify certain exceptions that are allowed only when the declarant is unavailable to testify (e.g., a statement made under the belief of impending death or a statement against self-interest), whereas other exceptions exist regardless of the declarant’s availability (e.g., an excited utterance or statements made for purposes of medical diagnosis). The question of whether statements falling within these exceptions are truly more trustworthy (and thus more useful) to a jury than are statements currently excluded as hearsay is one potential avenue of research that has not yet been explored.

The vast majority of studies examining how jurors evaluate hearsay testimony have used either college students or adult community members as mock jurors, although at least one study presented written questionnaires to jurors who had just delivered a verdict in an actual case that involved hearsay. Evidence has been presented to mock jurors in a variety of ways; frequently, researchers provide participants with written trial summaries, but other studies have used either audiotapes or videotapes of trials or forensic interviews in which the critical variables are experimentally manipulated. Researchers have examined variables related to the declarant (e.g., the declarant’s age), the hearsay witness (e.g., his or her relationship to the declarant), how the declarant made his or her statement (e.g., whether a suggestive or nonsuggestive form of questioning was used), and when the statement was made (e.g., the amount of time between the event and the declaration).

One basic question is whether jurors even distinguish between hearsay and nonhearsay evidence. Research into how jurors evaluate hearsay evidence began with studies comparing evidence presented by an eyewitness with the same information presented by a hearsay witness (therefore, the hearsay used in these studies would have been ruled inadmissible). Results suggest that jurors do not overvalue hearsay but instead seem to use the information in an appropriate way. The few studies examining the impact of judicial instructions to disregard inadmissible hearsay have led to mixed results regarding the instructions, but the results are generally consistent with the finding that hearsay is not overvalued as a form of evidence.

Many studies in recent years have focused on how jurors are influenced by hearsay testimony that is admissible either because it meets one of the standard exceptions to the hearsay rule or because of child hearsay statutes adopted by many states beginning in the 1980s. These statutes typically allow for hearsay in cases involving a child declarant who has been the victim of sexual abuse if a court determines that the hearsay information is reliable. The child hearsay statutes allow for hearsay only in cases involving sexual abuse, in part because the prospect of testifying in court in such cases may be especially terrifying to the child victim. Criminal defendants have the right to confront their accusers (provided by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution), but facing the defendant may impair the child witness and reduce the accuracy of his or her testimony. Child hearsay statutes allow for an adult to present the evidence to the jury while sparing the child the trauma of testifying.

Research comparing the in-court testimony of the child victim with some form of adult hearsay witness testimony has yielded inconsistent findings; in some cases, conviction rates are higher when the child testifies, and in other cases the hearsay witness produces a higher conviction rate. No consistent patterns of how jurors evaluate hearsay have yet emerged, a fact that is likely due to the large number of potentially relevant variables and the relatively small number of studies conducted to date.

Consider the special difficulties facing a juror who is evaluating hearsay evidence. Like any other witness, the juror must consider how believable the hearsay witness is in terms of his or her perception, memory, and intention (e.g., is the witness trying to deceive the juror?). Unlike other witnesses, however, the juror must now make inferences as to the believability of the declarant (who may never be seen by the juror). In addition, the juror will need to consider the nature of the relationship between the declarant and the hearsay witness as well as the circumstances regarding how and when the information was shared. Clearly, the task of evaluating hearsay testimony is daunting for both jurors and researchers alike.

References:

  1. Hearsay Reform Conference [Special issue]. (1992). Minnesota Law Review, 76(3).
  2. Ross, D. F., Warren, A. R., & McGough, L. S. (Eds.). (1999). Hearsay testimony in trials involving child witnesses [Special issue]. Psychology, Public Policy, and Law, 5(2).

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