More Hearsay and Foundation Objections
Over five years since my original post about hearsay and foundation objections, I have asserted and responded to these legal objections many times. Many people—lawyers included—imperfectly understand the underlying rules. A friend of mine, Mandel Bhandari, wrote a blog post about the origins of the rule against hearsay and others have written on the subject since. Yet I do not believe we have reached a point where too much has been written about this. So here are some additional thoughts:
Making hearsay and foundation objections requires a lawyer to pay a lot of attention. In particular, the lawyer must simultaneously listen for the substance of what a witness is saying and also register whether the witness is recounting firsthand knowledge or what she heard secondhand. Often this isn’t so easy because a witness may not come out and say, “someone told me that … .” Signposts like that are obvious. Sometimes a lawyer has to read between the lines to see that the information can’t have been observed by the witness; the witness must have heard it from someone else. Juggling these two different foci is hard. It becomes harder to then make a split-second decision whether to object before the opposing counsel moves on to the next question.
The widespread use of AI will likely lead to AI use during trial to listen for subtle cues, but I have yet to see someone use AI during trial to alert them to possible hearsay and foundation objections. Mark my words, and let me know when you see this in the wild.
Complying with hearsay and foundation rules need not be seen as onerous. Countering an objection can help a witness build credibility. Explaining how a witness knows certain information may make the jury, judge, or public more willing to trust the witness than if she had just asserted a statement, unchallenged.
Similarly, the choice of which witness to put on the stand can decide whether you prove a claim in court. Assume a company is being sued, and the CEO client offers a vice president to her lawyer as a witness. Did the VP actually observe the workplace accident? If not, a lawyer needs to dig to the next level to find witnesses with firsthand knowledge. This may take time for the search and extra witness preparations, but it strengthens the case.
Ultimately, a successful hearsay objection by an adverse party punishes the unprepared lawyer who did not account for admissibility of evidence. Considering possible objections ahead of time mitigates the risk that key testimony will be excluded. But these considerations also add to time and cost to trial preparation, and some clients may not appreciate its value.
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At trial, technical rules dictate what evidence is admissible and what evidence is not. Not only does this require lawyers to do a lot of work before trial to make sure their evidence is admitted, but it could baffle some people about why some great evidence wasn’t included.
Two major objections that keep evidence out of trial concern hearsay and foundation. These objections arise from the court’s preference for firsthand evidence from a witness who can be cross-examined by an opposing party. Evidence that is excluded from these objections usually relies on statements by someone who is not present for the trial, and thus whose credibility cannot be investigated.
Why should you read this post about hearsay and foundation objections?
You heard someone else say that their friend loved the original post.
You don’t want people talking about you if they don’t know what they’re talking about.
You want to correct someone at a party who uses the term “hearsay” wrong in an effort to be even more annoying than the other person.
Image credit: Eugene de Blaas The Friendly Gossips, creator QS:P170,Q715036,
public domain, from Wikimedia Commons.
Evidence Needs to be Presented by Someone With Firsthand Knowledge
At trial, witnesses swear to tell the truth. But when they speak about subjects that they do not know firsthand, their promise not to lie does not mean that the information they are sharing is true. For example, I can swear to tell the truth, but if I am asked when the American founders signed the Declaration of Independence, I could get the question wrong and still not be lying because I wasn’t there. Similarly, if I am asked how someone else felt after a particular event or why someone else did something, I can’t possibly truly know because I only know my own feelings for sure. As a result, courts generally permit testimony only from people who were present for the events about which they testify and are testifying about their own experience.
Usually when a witness tries to testify about something they did not see or hear firsthand, the source of their knowledge is someone else. For example, I know when the Declaration of Independence was signed because I read it on Wikipedia. But if I testify about that information, it is really Wikipedia’s information that is offered as evidence, not my recollection of what Wikipedia told me. And since Wikipedia and its many editors and contributors didn’t swear in court to tell the truth or are present to be cross-examined about their testimony, it is generally inadmissible.
These rules, however, do not limit testimony presented at depositions. Instead people can testify about matters they do not know firsthand at depositions, even though that testimony may ultimately not be admissible later on at trial.
The Objections and Their Exceptions
A foundation objection means that the witness does not have firsthand knowledge about the subject matter of their testimony.
A hearsay objection means that the witness is attempting to introduce the out-of-court statements of a third party for the truth of the statement.
Hearsay objections, however, have many exceptions. For example, a party is allowed to testify about the statements made by their adversary because of the “party admission” exception. This is because the adversary is in court and has the ability to testify and cross-examine the witness about the statement. A party may also testify about a statement if the purpose of the testimony is not to prove the truth of the matter asserted, but just that the statement was made, regardless of its truth. So I can testify that someone shouted “Fire!” in a crowded theater if the purpose of my testimony is to prove that someone shouted (thereby causing panic) and not to prove that there really was a fire.
There are several other exceptions to the hearsay rule (for example, certain business records, the statements of a person who is about to die, old public records), and each have specific requirements and policy reasons for why they are considered acceptable.
Hearsay Objections Apply to Testimony and to Documents
At a trial, when a question or answer indicates that the witness is not testifying about something they know firsthand, opposing counsel may tell the judge that she objects. Often she does not need to say “hearsay” or “foundation” since the judge may realize right away that the testimony is inadmissible, but sometimes the judge will ask for an explanation. If the objection is sustained, the attorney may try to ask the question a different way to elicit what the witness actually is able to speak about firsthand. So, for example, a witness may not be able to say that a third person was in pain, but she could testify that she saw the person bleeding. Or, in a process called “laying the foundation,” an attorney may ask a series of introductory questions that explains how the witness personally knows the information about which they are testifying.
The hearsay rule also applies to documents, since a document is not a person who can take an oath or be cross-examined. As a result, unless parties stipulate to the admission of documents as evidence, a witness with firsthand knowledge about a document (like its author or a recipient) often needs to testify about it before it can be introduced as evidence. That way there is someone who can swear to its authenticity and role in the case and be cross-examined on the subjects. But even so, a witness may not be able to testify about aspects of a document unless she knows them firsthand. So, if she testifies about what someone else meant in an email she did not write, that may be grounds for a foundation objection. And if she testifies that the person told them what they meant, that may be grounds for a hearsay objection (unless the person is their adversary in the case, in which the party-admission exception may apply).