Legal Definitions - double hearsay

Double hearsay occurs when a statement offered in court contains another statement within it, and both statements are considered hearsay. In simpler terms, it's "hearsay within hearsay." For a statement to be admissible in court, it generally cannot be hearsay – an out-of-court statement offered to prove the truth of what it asserts. The reason is that the person who originally made the statement isn't available for cross-examination in court.

When you have double hearsay, there are at least two layers of out-of-court statements. For the entire statement to be admissible as evidence, each individual layer of hearsay must independently qualify under a specific legal exception or exclusion to the hearsay rule. If even one layer doesn't meet an exception, the entire statement is usually inadmissible.

Here are a few examples to illustrate this concept:

• Example 1: Police Report Testimony

  Imagine a police officer testifying in court about a car accident. The officer states, "The bystander told me that the pedestrian shouted, 'The red car ran the stop sign!'"

  • The first layer of hearsay is the officer testifying about what the bystander said ("The bystander told me..."). The bystander's statement is out-of-court and offered to prove the truth of what the pedestrian said.
  • The second layer of hearsay is the bystander's report of what the pedestrian shouted ("...the pedestrian shouted, 'The red car ran the stop sign!'"). The pedestrian's shout is also an out-of-court statement offered to prove the truth (that the red car ran the stop sign).

  For the officer's testimony about the pedestrian's shout to be admissible, both the bystander's statement to the officer and the pedestrian's shout must each fall under a separate hearsay exception (e.g., "excited utterance" for the pedestrian's shout, and perhaps another exception for the bystander's report, though it's often more challenging). If either layer doesn't qualify, the entire statement is likely inadmissible as double hearsay.

• Example 2: Medical Records

  Consider a doctor's note in a patient's medical chart that reads: "Nurse Smith reported that the patient's daughter stated her mother had been complaining of chest pain for three days."

  • The first layer of hearsay is the doctor's note recording what Nurse Smith reported ("Nurse Smith reported that..."). The doctor is not testifying, but the note is an out-of-court statement.
  • The second layer of hearsay is Nurse Smith's report of what the patient's daughter stated ("...the patient's daughter stated her mother had been complaining of chest pain..."). The daughter's statement is also out-of-court and offered to prove the truth of the mother's symptoms.

  If this medical record were offered as evidence, both the nurse's statement to the doctor and the daughter's statement to the nurse would need to satisfy separate hearsay exceptions (e.g., the medical records exception for the doctor's note, and perhaps an exception for statements made for medical diagnosis or treatment for the daughter's statement) for the information about the chest pain to be admissible.

• Example 3: Business Communication

  In a lawsuit against a manufacturing company, an internal company email from a sales manager to a production manager states: "Customer A called me and said that their technician reported the new widget was consistently failing after 50 hours of use."

  • The first layer of hearsay is the sales manager's email reporting what Customer A said ("Customer A called me and said..."). The email is an out-of-court statement.
  • The second layer of hearsay is Customer A's report of what their technician reported ("...their technician reported the new widget was consistently failing..."). The technician's report is also an out-of-court statement offered to prove the truth of the widget's failure.

  For the information about the widget's failure to be admissible through this email, both the sales manager's statement about Customer A's call and Customer A's statement about their technician's report would need to independently fall under a hearsay exception (e.g., the business records exception for the email, and potentially another exception for the customer's statement, though that might be difficult). Without both, the technician's specific finding would be inadmissible as double hearsay.