Hearsay and Foundation Objections
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 this 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.
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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).