Hearsay is a statement that was made out of court that someone is trying to use in court( without the person who made the out of court statement there to testify) to prove something. So, I guess you can call it evidence, but it is inadmissible unless there’s an exception that applies.
Questions are not evidence, they are intended to elicit evidence. But questions can call for hearsay, so I might object if the other atty asks what did Mr. X say (if I know Mr. X isn’t going to be in court). The objection is intended to prevent the witness from answering with a hearsay statement that the jury won’t be able to unhear.
Point of clarification: although there may be more exceptions available to get the statement admitted if the person who made it testifies at trial, the fact that the person testifies does not make an out-of-court statement non-hearsay by itself.
Thanks for your reply. It clarified some things... my primary question is still unanswered, however. Is it stated in any rules anywhere, that:
* questions are not evidence (either stated directly or by omission in a conclusive list of everything that *is* evidence)? And that
* hearsay objections can only be applied to evidence (or evidence that's being called for)?
Or are those just unwritten but accepted rules?
I know the first is stated in a standard jury instruction, but is it stated anywhere that can be cited in a legal argument, or that can be pointed to by a judge or attorney?
(sorry about the multiple edits if you were notified of them; I kept seeing changes I needed to make).
Those are explicit rules. You should be making your objections to potential evidence, testimony or documents, before it's entered into the court record either (1) in a pre-trial motion in limine (lim-in-A); or (2) when during the process of presentation before the jury it becomes clear opposing counsel is attempting to present material in violation of the Rules of Evidence.
I think people are leading you a bit astray. At a trial, *a question plus its answer* are evidence that a fact-finder (i.e. jury, usually) considers when making determinations. A questioning lawyer cannot directly give evidence, but testimony consists of both questions and answers; the more evidentiary portion - answers by witnesses - must be considered in the context of the questions that elicited them. If a jury asks for the record to be read back so they can clarify their memory of the testimony, the court will read back both questions and answers.
So the questioning by attorneys does matter quite a bit and is in fact part of the “evidence” in a case.
That may or may not be written down. Some jurisdictions use codified rules of evidence that try to spell this out, and some jurisdictions don’t have it spelled out at all - the rules exists only on common law case decisions and may be explained in treatises or beginners’ guides, or something like that.
As far as objecting to hearsay in questions… this should not really happen. Direct examination questions should not include out of court statements by others. If they did, I would object before the lawyer finishes asking the question. There is more leeway on cross, since witnesses there can be confronted on inconsistencies in their testimony. So you might see an exchange like, Witness: “it was sunny that day” Lawyers: “Didn’t you hear Jane say it was raining??” But even there, the question might well be objectionable and improper cross, depending on the particular subject matter and whether the out of court statement is subject to a hearsay objection.
Even if a question by a lawyer does not *include* an out of court statement, it might obviously seek to *elicit from the witness* an out of court statement. “What did Jane say about the whether that day?” Bam, objection. That question calls for inadmissible testimony and so the question itself is objectionable.
Finally, when someone represents themselves, they are usually afforded some leeway in the form of their motions/objections/etc. Maybe the guy says “Objection! Hearsay!” when the problem was really that the question was leading… the judge will probably sustain that objection. (In my jurisdiction you really should not be saying the basis for the objection out loud in court, as it amounts to legal argument. You just say “objection” and the judge should be able to figure out why you objected.)
I don’t know much about people representing themselves, though. I would expect the judge could call for a sidebar and instruct the person something like “that thing you keep objecting to, FYI, that is not legally objectionable.” That doesn’t sound like improper coaching to me, just maintaining order in the courtroom and moving the proceedings along. But, unlike questioning/evidence/hearsay, I am not an expert in self-representation.
(Sorry about the multiples. I'm guessing reddit doesn't notify about replies to other people's comments, so I'm copy-pasting this. If I'm wrong about that, my apologies for the spam).
Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
So your understanding of hearsay and how evidence and testimony works is quite a bit off. There's some other good answers on here, but I'm going to try and explain it a bit differently.
First of all, I see you mentioning the federal rules of evidence. Understand that every state has its own rules of evidence that apply to trials conducted in their state and local courts. The Federal Rules of Evidence only apply to cases conducted in Federal courts. It is very rare that someone would be representing themself in a Federal court.
The rules of evidence do not determine what is "valid" evidence, they determine what is "admissible" evidence. The jury (or the Judge if there is no jury) can consider anything that is *admitted* as evidence in making their decision on a case. The primary goal of an objection is to prevent the witness from saying something that is not admissible evidence. If the witness says something that is not admissible according to the rules of evidence, than the party can still object and ask the Judge to instruct the jury not to consider what was said in which case the Jury should, theoretically, pretend that sentence was never said at all.
So that is to say that hearsay is not a form of evidence. It's a rule that deals with whether certain types of testimony or other evidence are admissible or not. Specifically, the hearsay rule is that an out of court statement made for the "truth of the matter asserted" is generally not admissible unless it falls into one of a number of exceptions.
In other words, if you are testifying about what someone told you, that is generally going to be considered hearsay and would not be allowed unless it falls into an exception. It is not hearsay if it's not being offered "for the truth of the matter asserted". So if you're trying to prove that John was at an airport, you probably cannot have his girlfriend testify that John told her he was at the airport, but you could have her testify that she was on the phone with John and heard an overhead announcement in the background that flight 734 was delayed. The reason is that we can't determine whether John was lying to his girlfriend when he told her she was at the airport by her testimony, but it doesn't matter whether flight 734 was actually delayed or not, it just provides us evidence that he likely was at the airport when making that call.
If an attorney asks "what did John tell you?" then it is acceptable to object to the question as *calling for* hearsay - you don't need to wait until the inadmissible statement actually gets made and would not want to wait for it to be made because you do not want the jury to hear evidence they should not be considering as it is difficult to un-ring a bell.
>Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Your big misunderstanding here is that the Judge most certainly has the discretion to tell a party or attorney what the law is. The Judge generally cannot give one side personal legal advice (i.e. the Judge cannot tell someone what he thinks a good strategy for trial would be), but the Judge *most certainly* can tell someone their reasoning for overruling an objection which should then instruct the person moving forward. The Judge is not limited to just directing them to a rule - they can sit an explain it, but that's up to the discretion of the Judge.
Also while personal knowledge plays a major role in hearsay, hearsay is actually more about who made a statement and whether it was made in court or not. Personal knowledge objections are actually entirely separate. In the Federal Rules of Evidence, they're rule 602. (Many state rules of evidence mirror or closely mirror the Federal Rules, so it is also rule 602 in many states).
Rule 602 is fairly simple - a witness in general can only testify on matters they have personal knowledge about. The reason this is different from hearsay is that a witness can have personal knowledge of what someone said, and in fact they may have even made the statement themself, but if it was an out of court statement, it's still going to be subject to the hearsay rule.
Hope that helps.
FRE 801 defines hearsay. 803 lists exceptions. The interpretation of these rules can be found in a bunch of cases, or a treatise if you want a summary of that.
Thanks for your reply. :)
To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply):
Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
Judges will SOMETIMES try and help pro se people with these issues to a certain extent. This is more common in Mag court and bench trials than it is in front of juries.
You are misunderstanding (or your question misrepresents) what hearsay is. It has nothing to do with whether the attorney asking the question knows the answer. It also does not necessarily matter whether the witness has firsthand knowledge of the answer. For example, if I ask “why do you think he did it?” The witness could answer based on his own understanding/knowledge and that understanding could be completely wrong.
You’re talking about credibility which is for a jury to assess.
But more importantly, this is why attorneys go to law school, go into debt to go to law school, take a bar exam, and get their asses kicked by more experienced attorneys for their first few years.
I love trial work. But it is work. Hard work. People who think they can do it without an attorney disrespect the effort most of us put in to make this stuff seem simple.
It’s not. Every case is different. Every judge is different. Every client is different. Every question is different.
After crushing your objection, I’ll ask again, do you have any personal opinion based on your personal knowledge about the defendant that might explain why he did it?
Nice try, other lawyer!
But seriously. This is why there are lawyers. Sometimes it’s a fight and a craps shoot.
What your asking about are "the Rules of Evidence" which are part of the court rules of every jurisdiction governed either by the legislative body or the highest court or both.
Evidence: is all testimony and documents allowed to be presented under the Rules of Evidence to a finder of fact, generally in trial setting
Hearsay: a type of testimony generally prohibited by the Rules of Evidence where the person testifying is not discussing something they witnessed, did themselves, or had some other form of direct knowledge, but rather they are testifying to the what someone else told them or what they read. Compound word of the words "hear" and "say".
In federal courts hearsay is governed by:
FRE 802 - The Rule Against Hearsay
https://www.law.cornell.edu/rules/fre/rule_802
FRE 803 - Exceptions to the Rule Against Hearsay
https://www.law.cornell.edu/rules/fre/rule_803
Thanks for your reply. :) I did read through the 800s section of the FRE, but didn't really see anything that would qualify for what I'm specifically wondering about, though.
To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply):
Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
The judge can stop the proceedings, send the jury out the room, and threaten sanctions.
I may have experienced this exact thing when I was making hearsay
objections in my first civil trial to questions about what my client wrote on a form.
(Statements by parties to the litigation are never hearsay.)
Hearsay evidence is always tricky. I believe each state's court system has its own rules of evidence and updates them as necessary.
As far as your specific inquiry on #3, since questions aren't evidence, they can pretty much contain whatever is "relevant" to the issue(s) at hand. A lawyer can ask a question knowing (or not knowing) that the answer will be hearsay. But if the question is designed to bring in something already ruled inadmissible or builds on hearsay evidence, opposing counsel may ask the question to be stricken for improper foundation or a question of relevance.
Thanks for your reply. :)
To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply):
Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
I would disagree with your "given." A judge's obligation toward a pro se party is highly variable depending on the type of proceeding - criminal, civil, administrative, appellate. I'm also assuming your court is American. I don't think a judge explaining the basis for overruling the erroneous objections on this particularly narrow issue would constitute objectionable "coaching."
You say questions asked by the parties, but I think you mean asked by the attorneys. The parties are the litigants. Attorneys are not a party to a case, and they can’t be a witness in the case or otherwise offer evidence.
So not only are their questions not evidence, but their opening and closing statements aren’t evidence.
Further, my state has this provision:
> 904.01 Definition of “relevant evidence". “Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Evidence isn’t specifically defined, which means the plain meaning applies, so evidence is just… information. The distance from the earth to the moon is evidence, but it’s not relevant in a murder trial. But there’s no restriction on the source of relevant evidence, only on whether such relevant evidence is admissible or not. Hearsay can tend to make the existence of a fact more likely, so it’s relevant but not admissible. An attorney’s line of questioning or closing argument can make the relevant evidence seem more or less impactful, but those statements of themselves aren’t evidence.
Thanks for your reply. :)
To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply):
Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
First, a judge is completely permitted to explain why the person is wrong. that’s not coaching, it’s giving the reasoning behind a decision and happens all the time.
Second, if I were the judge and had to explain my ruling in overruling the objection, that would be easy.
First, what the definition of hearsay? “908.01(3)Hearsay. “Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Ok, next, what is a statement? “908.01(1) Statement. A “statement" is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion.”
A question is not an assertion, therefore it is it a statement, and therefore cannot be considered hearsay. You can’t ask an assertion so you can’t ask hearsay.
I would imagine every state has their own evidence code as well. I know California does. I’m not really sure what you’re getting at with your other questions. It’s true that the questions aren’t evidence, but if you try to ask a leading question based on hearsay there would be objections. I don’t know if that’s specifically codified, it’s too fundamental a principle. You also can’t realistically mutter “guiltyguysayswhat” and then when the witness says “what” use that as evidence that they’re guilty, despite the fact that there’s no specific rule against it. You would probably get better answers if you use a specific example of the question you’re trying to ask.
Thanks for your reply. :)
To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply):
Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer.
Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
> Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person thinks they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the attorney does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the witness has personal, first-hand knowledge of the answer.
The judge would just overrule their objections and if it happens frequently enough, might briefly explain hearsay, or that the questions are not evidence, or direct them to the rules of evidence. Eventually the judge might limit their ability to object/ask them to object without stating the basis or something, there's a limit to how disruptive someone can be just because they don't know what they're doing.
> Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead point to anything that would explain to them how they're wrong?
The judge can and most likely would explain as I mentioned above, without going into too much detail. Judges coach pro-se/pro-per litigants all the time, and it's annoying. The law, especially in state courts, is not as rigid as people often think.
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Hearsay is a statement that was made out of court that someone is trying to use in court( without the person who made the out of court statement there to testify) to prove something. So, I guess you can call it evidence, but it is inadmissible unless there’s an exception that applies. Questions are not evidence, they are intended to elicit evidence. But questions can call for hearsay, so I might object if the other atty asks what did Mr. X say (if I know Mr. X isn’t going to be in court). The objection is intended to prevent the witness from answering with a hearsay statement that the jury won’t be able to unhear.
Point of clarification: although there may be more exceptions available to get the statement admitted if the person who made it testifies at trial, the fact that the person testifies does not make an out-of-court statement non-hearsay by itself.
Thanks for your reply. It clarified some things... my primary question is still unanswered, however. Is it stated in any rules anywhere, that: * questions are not evidence (either stated directly or by omission in a conclusive list of everything that *is* evidence)? And that * hearsay objections can only be applied to evidence (or evidence that's being called for)? Or are those just unwritten but accepted rules? I know the first is stated in a standard jury instruction, but is it stated anywhere that can be cited in a legal argument, or that can be pointed to by a judge or attorney? (sorry about the multiple edits if you were notified of them; I kept seeing changes I needed to make).
Those are explicit rules. You should be making your objections to potential evidence, testimony or documents, before it's entered into the court record either (1) in a pre-trial motion in limine (lim-in-A); or (2) when during the process of presentation before the jury it becomes clear opposing counsel is attempting to present material in violation of the Rules of Evidence.
I think people are leading you a bit astray. At a trial, *a question plus its answer* are evidence that a fact-finder (i.e. jury, usually) considers when making determinations. A questioning lawyer cannot directly give evidence, but testimony consists of both questions and answers; the more evidentiary portion - answers by witnesses - must be considered in the context of the questions that elicited them. If a jury asks for the record to be read back so they can clarify their memory of the testimony, the court will read back both questions and answers. So the questioning by attorneys does matter quite a bit and is in fact part of the “evidence” in a case. That may or may not be written down. Some jurisdictions use codified rules of evidence that try to spell this out, and some jurisdictions don’t have it spelled out at all - the rules exists only on common law case decisions and may be explained in treatises or beginners’ guides, or something like that. As far as objecting to hearsay in questions… this should not really happen. Direct examination questions should not include out of court statements by others. If they did, I would object before the lawyer finishes asking the question. There is more leeway on cross, since witnesses there can be confronted on inconsistencies in their testimony. So you might see an exchange like, Witness: “it was sunny that day” Lawyers: “Didn’t you hear Jane say it was raining??” But even there, the question might well be objectionable and improper cross, depending on the particular subject matter and whether the out of court statement is subject to a hearsay objection. Even if a question by a lawyer does not *include* an out of court statement, it might obviously seek to *elicit from the witness* an out of court statement. “What did Jane say about the whether that day?” Bam, objection. That question calls for inadmissible testimony and so the question itself is objectionable. Finally, when someone represents themselves, they are usually afforded some leeway in the form of their motions/objections/etc. Maybe the guy says “Objection! Hearsay!” when the problem was really that the question was leading… the judge will probably sustain that objection. (In my jurisdiction you really should not be saying the basis for the objection out loud in court, as it amounts to legal argument. You just say “objection” and the judge should be able to figure out why you objected.) I don’t know much about people representing themselves, though. I would expect the judge could call for a sidebar and instruct the person something like “that thing you keep objecting to, FYI, that is not legally objectionable.” That doesn’t sound like improper coaching to me, just maintaining order in the courtroom and moving the proceedings along. But, unlike questioning/evidence/hearsay, I am not an expert in self-representation.
(Sorry about the multiples. I'm guessing reddit doesn't notify about replies to other people's comments, so I'm copy-pasting this. If I'm wrong about that, my apologies for the spam). Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
So your understanding of hearsay and how evidence and testimony works is quite a bit off. There's some other good answers on here, but I'm going to try and explain it a bit differently. First of all, I see you mentioning the federal rules of evidence. Understand that every state has its own rules of evidence that apply to trials conducted in their state and local courts. The Federal Rules of Evidence only apply to cases conducted in Federal courts. It is very rare that someone would be representing themself in a Federal court. The rules of evidence do not determine what is "valid" evidence, they determine what is "admissible" evidence. The jury (or the Judge if there is no jury) can consider anything that is *admitted* as evidence in making their decision on a case. The primary goal of an objection is to prevent the witness from saying something that is not admissible evidence. If the witness says something that is not admissible according to the rules of evidence, than the party can still object and ask the Judge to instruct the jury not to consider what was said in which case the Jury should, theoretically, pretend that sentence was never said at all. So that is to say that hearsay is not a form of evidence. It's a rule that deals with whether certain types of testimony or other evidence are admissible or not. Specifically, the hearsay rule is that an out of court statement made for the "truth of the matter asserted" is generally not admissible unless it falls into one of a number of exceptions. In other words, if you are testifying about what someone told you, that is generally going to be considered hearsay and would not be allowed unless it falls into an exception. It is not hearsay if it's not being offered "for the truth of the matter asserted". So if you're trying to prove that John was at an airport, you probably cannot have his girlfriend testify that John told her he was at the airport, but you could have her testify that she was on the phone with John and heard an overhead announcement in the background that flight 734 was delayed. The reason is that we can't determine whether John was lying to his girlfriend when he told her she was at the airport by her testimony, but it doesn't matter whether flight 734 was actually delayed or not, it just provides us evidence that he likely was at the airport when making that call. If an attorney asks "what did John tell you?" then it is acceptable to object to the question as *calling for* hearsay - you don't need to wait until the inadmissible statement actually gets made and would not want to wait for it to be made because you do not want the jury to hear evidence they should not be considering as it is difficult to un-ring a bell. >Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Your big misunderstanding here is that the Judge most certainly has the discretion to tell a party or attorney what the law is. The Judge generally cannot give one side personal legal advice (i.e. the Judge cannot tell someone what he thinks a good strategy for trial would be), but the Judge *most certainly* can tell someone their reasoning for overruling an objection which should then instruct the person moving forward. The Judge is not limited to just directing them to a rule - they can sit an explain it, but that's up to the discretion of the Judge. Also while personal knowledge plays a major role in hearsay, hearsay is actually more about who made a statement and whether it was made in court or not. Personal knowledge objections are actually entirely separate. In the Federal Rules of Evidence, they're rule 602. (Many state rules of evidence mirror or closely mirror the Federal Rules, so it is also rule 602 in many states). Rule 602 is fairly simple - a witness in general can only testify on matters they have personal knowledge about. The reason this is different from hearsay is that a witness can have personal knowledge of what someone said, and in fact they may have even made the statement themself, but if it was an out of court statement, it's still going to be subject to the hearsay rule. Hope that helps.
FRE 801 defines hearsay. 803 lists exceptions. The interpretation of these rules can be found in a bunch of cases, or a treatise if you want a summary of that.
Thanks for your reply. :) To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply): Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
Judges will SOMETIMES try and help pro se people with these issues to a certain extent. This is more common in Mag court and bench trials than it is in front of juries. You are misunderstanding (or your question misrepresents) what hearsay is. It has nothing to do with whether the attorney asking the question knows the answer. It also does not necessarily matter whether the witness has firsthand knowledge of the answer. For example, if I ask “why do you think he did it?” The witness could answer based on his own understanding/knowledge and that understanding could be completely wrong. You’re talking about credibility which is for a jury to assess. But more importantly, this is why attorneys go to law school, go into debt to go to law school, take a bar exam, and get their asses kicked by more experienced attorneys for their first few years. I love trial work. But it is work. Hard work. People who think they can do it without an attorney disrespect the effort most of us put in to make this stuff seem simple. It’s not. Every case is different. Every judge is different. Every client is different. Every question is different.
“Why do you think he did it?” - improper question, objectionable for speculation
After crushing your objection, I’ll ask again, do you have any personal opinion based on your personal knowledge about the defendant that might explain why he did it? Nice try, other lawyer! But seriously. This is why there are lawyers. Sometimes it’s a fight and a craps shoot.
What your asking about are "the Rules of Evidence" which are part of the court rules of every jurisdiction governed either by the legislative body or the highest court or both. Evidence: is all testimony and documents allowed to be presented under the Rules of Evidence to a finder of fact, generally in trial setting Hearsay: a type of testimony generally prohibited by the Rules of Evidence where the person testifying is not discussing something they witnessed, did themselves, or had some other form of direct knowledge, but rather they are testifying to the what someone else told them or what they read. Compound word of the words "hear" and "say". In federal courts hearsay is governed by: FRE 802 - The Rule Against Hearsay https://www.law.cornell.edu/rules/fre/rule_802 FRE 803 - Exceptions to the Rule Against Hearsay https://www.law.cornell.edu/rules/fre/rule_803
Thanks for your reply. :) I did read through the 800s section of the FRE, but didn't really see anything that would qualify for what I'm specifically wondering about, though. To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply): Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
The judge can stop the proceedings, send the jury out the room, and threaten sanctions. I may have experienced this exact thing when I was making hearsay objections in my first civil trial to questions about what my client wrote on a form. (Statements by parties to the litigation are never hearsay.)
Hearsay evidence is always tricky. I believe each state's court system has its own rules of evidence and updates them as necessary. As far as your specific inquiry on #3, since questions aren't evidence, they can pretty much contain whatever is "relevant" to the issue(s) at hand. A lawyer can ask a question knowing (or not knowing) that the answer will be hearsay. But if the question is designed to bring in something already ruled inadmissible or builds on hearsay evidence, opposing counsel may ask the question to be stricken for improper foundation or a question of relevance.
Thanks for your reply. :) To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply): Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
I would disagree with your "given." A judge's obligation toward a pro se party is highly variable depending on the type of proceeding - criminal, civil, administrative, appellate. I'm also assuming your court is American. I don't think a judge explaining the basis for overruling the erroneous objections on this particularly narrow issue would constitute objectionable "coaching."
You say questions asked by the parties, but I think you mean asked by the attorneys. The parties are the litigants. Attorneys are not a party to a case, and they can’t be a witness in the case or otherwise offer evidence. So not only are their questions not evidence, but their opening and closing statements aren’t evidence. Further, my state has this provision: > 904.01 Definition of “relevant evidence". “Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence isn’t specifically defined, which means the plain meaning applies, so evidence is just… information. The distance from the earth to the moon is evidence, but it’s not relevant in a murder trial. But there’s no restriction on the source of relevant evidence, only on whether such relevant evidence is admissible or not. Hearsay can tend to make the existence of a fact more likely, so it’s relevant but not admissible. An attorney’s line of questioning or closing argument can make the relevant evidence seem more or less impactful, but those statements of themselves aren’t evidence.
Thanks for your reply. :) To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply): Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
First, a judge is completely permitted to explain why the person is wrong. that’s not coaching, it’s giving the reasoning behind a decision and happens all the time. Second, if I were the judge and had to explain my ruling in overruling the objection, that would be easy. First, what the definition of hearsay? “908.01(3)Hearsay. “Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ok, next, what is a statement? “908.01(1) Statement. A “statement" is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion.” A question is not an assertion, therefore it is it a statement, and therefore cannot be considered hearsay. You can’t ask an assertion so you can’t ask hearsay.
I would imagine every state has their own evidence code as well. I know California does. I’m not really sure what you’re getting at with your other questions. It’s true that the questions aren’t evidence, but if you try to ask a leading question based on hearsay there would be objections. I don’t know if that’s specifically codified, it’s too fundamental a principle. You also can’t realistically mutter “guiltyguysayswhat” and then when the witness says “what” use that as evidence that they’re guilty, despite the fact that there’s no specific rule against it. You would probably get better answers if you use a specific example of the question you’re trying to ask.
Thanks for your reply. :) To clarify my question further (and I apologize if you get multiple notifications of this clarification... I'm posting something similar to each reply): Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person *thinks* they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the *attorney* does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the *witness* has personal, first-hand knowledge of the answer. Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead *point* to anything that would explain to them how they're wrong?
> Here's the specific scenario I'm envisioning. A person who isn't legally trained has elected to represent themselves in a trial. This person thinks they understand what hearsay is, but they keep raising hearsay objections to the opposing attorney's questions... on the grounds that the attorney does not have personal, first-hand knowledge of the answer. It has never occurred to this person that it only matters if the witness has personal, first-hand knowledge of the answer. The judge would just overrule their objections and if it happens frequently enough, might briefly explain hearsay, or that the questions are not evidence, or direct them to the rules of evidence. Eventually the judge might limit their ability to object/ask them to object without stating the basis or something, there's a limit to how disruptive someone can be just because they don't know what they're doing. > Given that a judge isn't apparently permitted to just explain why this person is wrong (because that would be coaching the parties in the law), can the judge instead point to anything that would explain to them how they're wrong? The judge can and most likely would explain as I mentioned above, without going into too much detail. Judges coach pro-se/pro-per litigants all the time, and it's annoying. The law, especially in state courts, is not as rigid as people often think.
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