number of variables that undoubtedly influence juror
perceptions of hearsay witnesses.
Hearsay is an out-of-court statement made by an
individual (the declarant) that is offered as evidence in
court by another individual (the witness, but referred to
here as the “hearsay witness” for clarity) to prove the
truth of the matter asserted. Repeating a declarant’s
statement in court is hearsay if the witness is trying to
convince the jury that what the declarant said is true,
whereas it would not be hearsay if the witness is trying
to show that the declarant speaks English, for example.
Concerns about the trustworthiness of hearsay arise
because the declarant was not under oath at the time of
the statement, the demeanor of the declarant while
uttering the statement cannot be observed by the jury,
and cross-examination of the hearsay witness may not
reveal shortcomings in the declarant’s statement. The
hearsay rule therefore establishes that hearsay is not
admissible except in situations where there is some rea-
son to believe that the declarant’s statement is trustwor-
thy. The Federal Rules of Evidence identify certain
exceptions that are allowed only when the declarant is
unavailable to testify (e.g., a statement made under the
belief of impending death or a statement against self-
interest), whereas other exceptions exist regardless of
the declarant’s availability (e.g., an excited utterance or
statements made for purposes of medical diagnosis).
The question of whether statements falling within these
exceptions are truly more trustworthy (and thus more
useful) to a jury than are statements currently excluded
as hearsay is one potential avenue of research that has
not yet been explored.
The vast majority of studies examining how jurors
evaluate hearsay testimony have used either college
students or adult community members as mock jurors,
although at least one study presented written question-
naires to jurors who had just delivered a verdict in an
actual case that involved hearsay. Evidence has been
presented to mock jurors in a variety of ways; fre-
quently, researchers provide participants with written
trial summaries, but other studies have used either
audiotapes or videotapes of trials or forensic interviews
in which the critical variables are experimentally manip-
ulated. Researchers have examined variables related to
the declarant (e.g., the declarant’s age), the hearsay wit-
ness (e.g., his or her relationship to the declarant), how
the declarant made his or her statement (e.g., whether a
suggestive or nonsuggestive form of questioning was
used), and when the statement was made (e.g., the
amount of time between the event and the declaration).One basic question is whether jurors even distin-
guish between hearsay and nonhearsay evidence.
Research into how jurors evaluate hearsay evidence
began with studies comparing evidence presented by
an eyewitness with the same information presented by
a hearsay witness (therefore, the hearsay used in these
studies would have been ruled inadmissible). Results
suggest that jurors do not overvalue hearsay but
instead seem to use the information in an appropriate
way. The few studies examining the impact of judicial
instructions to disregard inadmissible hearsay have
led to mixed results regarding the instructions, but the
results are generally consistent with the finding that
hearsay is not overvalued as a form of evidence.
Many studies in recent years have focused on how
jurors are influenced by hearsay testimony that is admis-
sible either because it meets one of the standard excep-
tions to the hearsay rule or because of child hearsay
statutes adopted by many states beginning in the 1980s.
These statutes typically allow for hearsay in cases
involving a child declarant who has been the victim of
sexual abuse if a court determines that the hearsay infor-
mation is reliable. The child hearsay statutes allow for
hearsay only in cases involving sexual abuse, in part
because the prospect of testifying in court in such cases
may be especially terrifying to the child victim. Crimi-
nal defendants have the right to confront their accusers
(provided by the Confrontation Clause of the Sixth
Amendment to the U.S. Constitution), but facing the
defendant may impair the child witness and reduce the
accuracy of his or her testimony. Child hearsay statutes
allow for an adult to present the evidence to the jury
while sparing the child the trauma of testifying.
Research comparing the in-court testimony of the
child victim with some form of adult hearsay witness
testimony has yielded inconsistent findings; in some
cases, conviction rates are higher when the child testi-
fies, and in other cases the hearsay witness produces a
higher conviction rate. No consistent patterns of how
jurors evaluate hearsay have yet emerged, a fact that is
likely due to the large number of potentially relevant
variables and the relatively small number of studies
conducted to date.
Consider the special difficulties facing a juror who
is evaluating hearsay evidence. Like any other witness,
the juror must consider how believable the hearsay
witness is in terms of his or her perception, memory,
and intention (e.g., is the witness trying to deceive the
juror?). Unlike other witnesses, however, the juror
must now make inferences as to the believability of theHearsay Testimony——— 355H-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 355