Most people know that “hearsay” is unreliable and inadmissible in court, but the term “hearsay” is a legal term that's often used incorrectly. That's not surprising because in military courts-martial, just as in civilian courts, the concept of hearsay is a tangled mess of definitions, exclusions, and exceptions.

What Is Hearsay?

Many people mistakenly think that hearsay is simply a statement that someone overheard and repeated, but hearsay is an evidentiary term with a very specific definition. The entirety of Section VIII of the Military Rules of Evidence (MRE) is devoted to defining hearsay and outlining the limits of its admissibility in courts-martial proceedings. The evidentiary rules on hearsay in the MRE mirror those in the Federal Rules of Evidence.

Hearsay is an out-of-court statement that is offered as evidence in a hearing or trial to “prove the truth of the matter asserted in the statement.” According to MRE 801, a statement can be an oral assertion, written assertion, or non-verbal conduct if the conduct was intended as an assertion—for example, a head nod in response to a question.

What Is Not Hearsay?

A statement is not necessarily hearsay just because it was given out of court or overhead and repeated in court. The key part of MRE 801 that excludes many out-of-court statements from being considered hearsay is the requirement that the statement be offered as evidence “to prove the truth of the matter asserted.” That means if the statement—no matter how unreliable—is offered at trial for some other reason, the statement is not considered hearsay.

In a common scenario, an OSI, NCIS, or CID Agent will be allowed to testify about what someone else told them because the prosecutor has the agent repeat what they were told to show how that information impacted the agent's action. Consider the following hypothetical: an testifies that he made an arrest with the suspect at gunpoint. Then the prosecutor asks him why the agent pulled his gun. The agent then tells the jury, “His wife told me that he was carrying a gun.” A defense objection that rests only on the hearsay rule will fail because the prosecutor will claim that the statement is offered to prove why the agent pulled his gun, not to prove that the suspect actually had a gun. Therefore, the statement isn't considered hearsay at all because it isn't offered to prove the truth of what was in the statement, merely its effect on the listener.

Articulating what hearsay is only covers half of the definition contained in MRE 801. Just as important is understanding what out-of-court statements are not considered hearsay under the rules of evidence. Statements that MRE 801 specifically excludes from the definition of hearsay do not require an exception to the general rule that hearsay is inadmissible as evidence because they don't qualify as hearsay at all.

The Prior Statement of a Witness

The first exclusion from the hearsay definition is a witness's prior statement if it meets certain criteria. Because the Sixth Amendment to the Constitution guarantees people accused of crimes the right to confront the witnesses against them, the prior statement of a testifying witness may only be introduced as evidence if the witness is testifying about their statement and is subject to cross examination about the statement.

If a witness's prior statement is introduced because it is inconsistent with their current testimony, the prior statement must have been given under penalty of perjury.

If the witness's prior statement is consistent with their current testimony, the out-of-court statement can only be introduced to rebut certain accusations or implications that attack the witness's credibility.

A witness's prior identification might also be admissible. For example, if a witness previously identified a suspect in a police line-up, the prosecution may attempt to introduce that prior identification during the witness's trial testimony.

A Statement of an Opposing Party

The second exclusion from the definition of hearsay in MRE 801 is an opposing party's statement or a statement of an alleged co-conspirator. If you're suspected of committing a crime, this rule is one of the many reasons why it's important to speak to an experienced defense attorney before making any statements. Anything you say can and will be used in court, and your statements won't be considered hearsay if you're tried at a court-martial.

Exceptions to the Hearsay Rule

In addition to the definition and statements excluded from the definition of hearsay listed in listed in MRE 801, the rules of evidence contain many exceptions that often allow both prosecutors and defense attorneys to introduce out-of-court statements even when those statements are defined as hearsay. We'll discuss the exceptions and some of the finer contours of the hearsay rules in our next post.

DISCLAIMER:  The information above is for general informational purposes only.  No attorney-client relationship is intended or created by this information.  Each individual situation is different and therefore a formal in-person consultation is necessary before any specific advice may be relied upon as appropriate and accurate for a given situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice you may rely upon. We serve clients anywhere in the world, with in-person consultations available at our Suitland, MD office — right next to Andrews Air Force Base — for clients in Maryland, Virginia, and Washington, D.C.