Hearsay Rules in Louisiana: Understanding Evidence Admissibility

In any Louisiana lawsuit, the strength of your case depends entirely on what evidence is allowed into the courtroom. The ‘Hearsay Rule’ acts as a gatekeeper, designed to ensure that only reliable, first-hand testimony reaches the judge or jury. Under Louisiana Code of Evidence Article 802, understanding what constitutes hearsay—and the many exceptions to the rule—is often the difference between a successful verdict and an inadmissible claim.

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Assertive vs. Non-Assertive Conduct: When Actions Speak

Understanding Legal Terms
Assertive Conduct:
Words, either oral or written, can constitute hearsay if intended as an assertion or detail to be considered factually correct. Also, action or conduct could be considered as assertion even when technically, no words have been spoken. When wordless behavior has expressive and communicative intent or purpose, it too is subject to hearsay. One example of assertive action or conduct is nodding one’s head in answer to a question as it is a wordless statement that is offered to prove what it asserts.

Non Assertive Conduct:
Usually, conduct does not necessarily assert anything and where conduct is apparently non-assertive, it is likely to be treated as non-hearsay. Conduct is hearsay if the person engaging in the conduct probably intended it to assert a fact observed. For example, a woman testifies that her mother complained of a smell in her home and had health troubles, pointing at her throat like it was difficult to breathe. If the mother is unable to testify at trial, the pointing is (potentially) hearsay since it is meant to assert a fact observed – that the health problem was in the throat/upper head area. Such issues are easily applicable in Chinese drywall cases, mesothelioma, asbestos-concerns, etc.

Definition of Hearsay Under Louisiana Article 802

While these items seem simple and obvious, the reality is there are very unique reasons for why hearsay can be excluded. The four important hearsay risks are misperception, faulty memory, misstatement/ambiguity/faulty narration and distortion. There are key reasons as to hearsay is excluded from evidence are as follows. Firstly, there is an absence of cross-examination. This one is the most important because credibility of the statement cannot be tested by cross-examination. In State v. Brown, the Louisiana Supreme Court stated that “the value of the statement rests on the credibility of the out-of-court asserter who is not subject to cross-examination and other safeguards of reliability.” Absence of demeanor evidence- the meaning of a person’s assertion can change depending on the person’s demeanor while making the assertion. Thus, without being able to see a person’s demeanor when an assertion was made, the meaning may be lost or confused. Lastly, the fact that the absence of oath in hearsay statements is another reason for exclusion. Granted, there are exceptions to the rule against hearsay and cross-examination and oath are sometimes requirements for an assertion to fall within one of these exceptions. One can refer to the Louisiana Code of Civil Procedure to see the exceptions to the hearsay rule and assertions that are not considered hearsay.

Why is Hearsay Excluded? Cross-Examination and Credibility

When hearsay is ruled admissible or inadmissible in trial court, this is considered a ruling on the admissibility of evidence. Such a ruling is a question of law and is not subject to the manifest error standard of review. Parties to a suit cannot complain on appeal about an evidentiary ruling in the trial court unless the trial judge was given the opportunity to avoid the perceived error, and the ruling “affected” a “substantial right” of the party. For example, in the Louisiana Supreme Court Case, Trascher v. Territo, the defendants argued that their substantial right was affected when in the district court, a video deposition was deemed admissible. In that case, the substantial right that was affected by the evidentiary ruling was the defendants’ right to cross-examine the witness against them.

Protecting Your Case with a Qualified Litigation Attorney

Hearsay is a dense and technical area of law, but it is one of the most powerful tools in a litigator’s arsenal. Whether you are dealing with a Car Accident, a Business Dispute, or a complex Medical Malpractice claim, you need a legal team that knows how to navigate the Rules of Evidence to protect your interests. Contact our New Orleans litigation team today to ensure your evidence is presented clearly, effectively, and in full compliance with the law.