Skip NavigationIs It Hearsay?

Is It Out of Court?



The origin of evidence is deemed to be “out of court” if the witness testifies about a communication first made at a time other than when she is on the stand before the current trier of fact. The analysis applies even when a witness is testifying about what she said at a prior hearing or trial.  Thus, a previous statement offered at trial by the same witness who is now testifying is considered out of court, as are statements in writing, audiotapes, and videotapes made at another time.

So, for example, if the witness on the stand testifies that, “Last week I said, 'The light was green’,” the evidence is subject to further consideration under the hearsay rule because the first time it was made was at a time other than before the current tribunal in open court.  As mentioned earlier, one reason that a witness’s previous statement may be inadmissible hearsay is that the opponent must be able to cross-examine the declarant at the time the statement is made.   Another reason to exclude prior statements by a witness is to eliminate the circumstances under which the witness gains an unfair advantage and wastes court time by testifying twice about the same fact.

A related issue is whether the out-of-court statement is made by a “declarant.”  Evid C §135 defines “declarant” as “a person who makes a statement.”  Evid C §175 defines “person” to include “a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.”  An animal is not a “declarant” because it can’t be cross-examined.  Nor can a machine.  Therefore, if a computer generates information itself—e.g., a blood-alcohol level from an intoxylizer—that information is not hearsay.  However, if the computer is merely a storage device for information recorded by a “person,” that information might be hearsay because the “person” who recorded the information should be subject to cross-examination.

  © 2007 Judicial Council of California