Hearsay Proceedings in Illinois

Hearsay Explained | What is Hearsay in Illinois Litigation?

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
October 28, 2019

In this article, we’ll define hearsay evidence, double hearsay evidence, and provide a few examples of each, answering the questions, “What is hearsay?” “What’s an example of hearsay?” “What is double hearsay?” and “What’s an example of double hearsay?”

If you are familiar with the kid-friendly game of Telephone, you know how easily information can be miscommunicated and misconstrued by traveling word-of-mouth. The truth can quickly become altered when it is passed from person to person, and this is the rationale behind the Hearsay Rule.

Attorneys always prefer to have the original speaker testifying in court, as opposed to a second person who supposedly heard the original individual speak. The same thing goes for eyewitnesses – judges and juries need to hear from people who witnessed the crime first-hand, not the person who learned about the crime from a witness, however directly or indirectly.

That being said, “hearsay” evidence is secondhand information that a witness only learned about from someone else; the witness did not see or hear the information himself. Because hearsay is an out-of-court statement, made in court to prove the truth of the matter asserted, it is not considered to be trustworthy in the court of law. Hearsay is not limited to spoken words. It can also include legal documents, body language, letters, affidavits, declarations, diaries, memos, notes, computer files, purchase receipts, and contracts.

Essentially, hearsay is inadmissible in the courtroom in order to avoid conviction by gossip. Secondhand, out-of-court statements just aren’t reliable to be used as evidence at trial. While this rule seems fairly straightforward, there’s a large amount of exceptions, which we cover in our other article, Hearsay Exceptions Explained.

There are three elements to the Hearsay Rule. A statement will be considered “hearsay” if it meets all three of the following criteria:

1.) An assertive statement: an “assertive statement” is the intentional communication of fact. This can be oral, written, or non-verbal, if the silence is meant to assert a fact.

2.) Made by an out-of-court declarant: the statement has to be made outside of the courtroom by a person who is not in that courtroom. Even if the statement is made in another courtroom, it is still being made by an out-of-court declarant.

3.) Offered to prove the truth of the matter asserted therein: the statement has to be offered in order to prove the truth of what it asserts. If the statement is offered for any other purpose, it is not hearsay.

The Hearsay Rule is taken very seriously, because every statement offered in court, regardless if it is hearsay or not, is subject to error. Every statement has the potential to be incorrect due to faulty memory, poor articulation, or perjury. That being said, out-of-court statements are even less reliable, because they cannot be cross-examined or tested for truth by the opposing side. To truly determine if an out-of-court statement is hearsay, simply ask yourself, “Is this statement only relevant if it is true?” If the answer is yes, then the statement typically qualifies as hearsay.

Let’s review some examples of hearsay:

Example A

Let’s say that a witness says, “I saw Bob kill Mr. Smith.” This would be considered acceptable evidence, not hearsay. The witness is describing something that he or she saw with his or her own eyes, and the defense can cross-examine this person in the courtroom.

Example B

Let’s say that a witness says, “I heard Carrie say that Bob killed Mr. Smith.” If Carrie is not present in the courtroom, this would be considered hearsay evidence. The jury is unable to see the defense attorney cross-examine her for validity and clarity.

Example C

Let’s say that we need to prove that Bob was wearing a blue shirt on the day of a crime. We may ask the witness, Carrie, “Which shirt did Taylor tell you Bob was wearing on the day of the crime?” Because Carrie’s answer relies on Taylor’s statement, and Taylor is unavailable for cross-examination, her answer would be considered hearsay. However, if we ask the same question, not to prove that Bob was wearing a blue shirt, but to prove that Taylor said these exact words, it may not be considered hearsay.

When an out-of-court statement offered as evidence (hearsay) contains another out-of-court statement, it is known as double hearsay. When double hearsay occurs, both layers of hearsay must be found separately admissible.

Example of Double Hearsay

In the same scenarios listed above, let’s say Carrie testifies, “Taylor told me that her friend, Michelle, saw Bob wearing a blue shirt on the day of the crime.” Carrie’s statement of Taylor’s statement of Michelle’s statement would be considered double hearsay, because Taylor’s statement is hearsay of Michelle’s statement, which is also hearsay. Since both Taylor and Michelle are not testifying in court and available for cross-examination, this evidence would not be admissible in court.

There are many exceptions, to the hearsay rule, which allow statements that would otherwise be considered hearsay to be admitted as evidence, to learn more about this, check out our article: Exceptions to Hearsay in Illinois.

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