One of the great challenges of representing clients revolves around language and word usage. Many times the legal definition and common understanding of a word differ.
Hearsay falls into that category. Recently, while working to resolve a case for a client whose codefendant just entered a guilty plea and agreed to implicate the client, a family member said, “that’s just hearsay.” We discussed what the family member thought was hearsay so that I could understand the concern. Under the common understanding-not the legal definition-if a codefendant, or eyewitness for that matter, testifies about having observed an event, there is a false belief that this testimony is hearsay and that this testimony is worthless.
To unravel this misapprehension, we must talk about direct evidence and hearsay. First, an eyewitness, regardless of recent psychological publications, is classified as direct evidence that a crime was committed. A witness, who is a codefendant or a just an observer, may testify to what that witness observed. In my client’s case, the codefendant agreed to testify about actions my client took at the time of the crime: that the client was driving a motor vehicle involved in a crime. Like it or not, this evidence is admissible and cannot be challenged as hearsay.
Second, hearsay, in the situation of this particular client, would be a witness who testifies that she “heard” that the client was driving the car in question. With no direct observation, that witness’s testimony falls into the category of gossip and would not be admitted. The legal definition of hearsay varies from state to state but generally hearsay is an out of court statement offered by a witness to establish the truth of the matter asserted in the statement.
Be sure that when decisions are made in your case, that you make them based on the actual rules of evidence after discussion with counsel. Do not make decisions based on what you may have heard from someone who is not a lawyer.