The hearsay doctrine is a rule of legal evidence that is commonly misunderstood by non-lawyers. Many people believe that any third party statement – "Fred told me you’re cheating on me." "What? That’s just hearsay!" – is hearsay and therefore suspect or inadmissible. This belief is wrong. The hearsay rule is a complex formulation designed to prevent courts from considering certain statements which the law deems to be inherently unreliable – in effect, the law has imposed a "Say it to my face" rule. In addition, there are many complex exceptions to the hearsay rule which make statements admissible even though they might be hearsay.

Hearsay as defined by the legal books 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." This has a number of elements, which the reader must break down in order to properly understand what is and isn’t hearsay.

First, the item in question must qualify as a statement. This is broadly defined, but as we get deeper into the hearsay rule you’ll understand that questions cannot constitute hearsay. "Did Mary cheat on Bob?" cannot be hearsay not only because it is a statement, but because it cannot reasonably be offered as proof that Mary did in fact cheat on Bob – it’s merely a question. However, a statement may not be verbal. A nod or other gesture may be a statement. A letter or other written word can be a statement. Using telegraph, semaphore, or smoke signal... well, you get the idea. Any form of conduct intended to communicate a thought or idea might be considered a statement.

Second, the statement can be anything said outside the courtroom testimony. If Mary testifies, "I was cheating on Bob," that’s not hearsay, because Mary is offering the statement in her testimony. Since Mary is in court testifying, the parties can test the truthfulness of her statement by cross-examining her, so the law deems this sufficiently reliable to be admitted.

Third, the statement must be offered to prove the truth of the matter asserted. This is the most important prong of the hearsay test, since it frequently allows for the admission of incriminating statements even though they might otherwise be hearsay for other purposes. If Bob is on trial for killing Mary, a witness might testify, "Mary told Bob she was cheating on him." Mary's statement cannot be used to prove that she had cheated on Bob – such use would be "to prove the matter asserted." However, if the prosecutor wants to prove that that Bob believed Mary was cheating on him, and that Bob was angry at Mary, he can get the statement admitted for that purpose alone. It goes to prove Bob’s mental state, not Mary’s lack of fidelity, and Bob’s mental state may have been crucially important.

You can see from this final prong why a question could almost never constitute hearsay. Merely asking a question does not tend to "prove the matter asserted." It merely raises the question, and demonstrates the inquisitiveness of the questioner.

Note that there are many – over twenty, last time I checked – exceptions to the hearsay rule, which allow courts to consider these statements even though they are, in fact, hearsay. Each of these exceptions arises because the law deems those statements to have the minimum reliability required to be considered as evidence. Of course, a jury may still reject the evidence, but at least it gets the chance to hear these.

Exceptions to the Hearsay Rule
Exceptions to the Hearsay Rule - Part 2