Personal Knowledge and Hearsay

Personal Knowledge and Hearsay

A witness who repeats something she never saw invites two different objections, and a lawyer who raises the wrong one may get a ruling that misses the real defect. Rule 602 and the hearsay rule are close relatives, because each reflects a preference for hearing from the person who actually knows the fact rather than from someone passing it along. They nonetheless attack different testimonial forms, and the difference tells you which objection to make. This section first separates the two objections, then shows what a witness needs to know when she repeats an out-of-court statement, and finally asks whether the person who made that statement must have had personal knowledge of what he said.¹

Choosing the Right Objection

The requirement of personal knowledge is older than the hearsay rule and shares some of its policy, but the two operate on different features of the testimony.² Rule 602 asks whether a witness who purports to describe a fact directly had a reasonable opportunity to observe it. The hearsay rule asks whether the witness is relaying what someone else asserted outside court, offered to prove that the assertion is true. The dividing line is the form of the testimony: either the witness gives the facts on her own credit, or she gives an account of what another person said and the account is offered to establish the truth of that person's report.³

The reason the form matters is that each rule guards against a different vice. When a witness speaks as though from her own perception but could not have perceived, the vice is missing perception, and nothing the other side can test stands behind her claim. When a witness says "he told me," the vice is an untested assertion by someone who is absent, whom the jury cannot watch and the opponent cannot cross-examine. An objection that names the wrong vice may be overruled even though the testimony is defective, because the court answers the question it was asked.

A flight-arrival example shows the split. Suppose a witness testifies that a certain flight landed on time at the airport in X, and her other testimony shows she was in a different city that day. She can only be speaking from conjecture or from reports, so the proper objection is lack of personal knowledge, not hearsay.⁴ A witness who is open about her absence has the same defect: if she acknowledges being at a distant location when the event occurred, the objection is lack of personal knowledge.⁵ Now change one fact. Imagine a different witness who testifies, "My brother told me the flight came in on time," and the testimony is offered to prove when the plane arrived. Objecting that he lacks knowledge of the arrival time misses the point, because he purports to speak only from his knowledge of what his brother said, and as to that he presumably has knowledge. The appropriate objection is hearsay.⁶

Sometimes the form is blurred. A witness may plainly be relying on what others reported without ever saying "they told me," and in that situation the distinction between the two objections loses much of its significance. Courts then commonly accept the simple objection of hearsay, and it generally suffices.⁷ The careful lawyer still keeps the two apart, because when the witness has expressly disclaimed perception the cleaner objection is lack of personal knowledge, and when the witness has expressly identified another speaker the cleaner objection is hearsay.

Testifying About Out-of-Court Statements

A witness who repeats an out-of-court statement is testifying to two different things, and personal knowledge attaches to only one of them. The first is the fact that the statement was made, which the witness may have heard with her own ears. The second is the underlying event the statement describes, which she may know nothing about. Rule 602 asks only whether she perceived the first.⁹

When the statement is defined as not hearsay under Rule 801(d), or is admissible under an exception in Rule 803, 804, or 807, the witness is not required to have personal knowledge of the matter the statement describes. She must, however, have personal knowledge of the statement itself.¹⁰ The logic follows from what she is asked to do. She is not vouching for the underlying event. She is reporting that certain words were spoken, and a person who heard them is the best source for that. Whether the words may then be used to prove the underlying event is a separate question that belongs to the hearsay rules.

Suppose a witness testifies, "The plaintiff told me the car was a red Volvo." The witness was present and heard the plaintiff say it, so she has personal knowledge that the statement was made, even though she never saw the car. Her testimony clears Rule 602 on that point. Whether the jury may treat the car as a red Volvo depends on whether the statement fits a hearsay exclusion or exception, and if it does not, hearsay may bar its use for its truth. Compare a second witness who announces flatly, "The car was a red Volvo," and who concedes elsewhere that she was absent when the car appeared. She is speaking from supposed perception that she did not have, so she lacks personal knowledge of the car itself.¹¹

The two requirements therefore stack rather than substitute. A witness who repeats a statement must satisfy Rule 602 as to the fact that it was made, and the proponent must also find a route around the hearsay rule if the statement is offered for its truth. Clearing the first hurdle does nothing toward the second.

Declarants and Party Statements

The personal-knowledge requirement does not disappear when a statement qualifies for admission. It shifts to the person who made the statement. To be admitted under an exception in Rule 803, 804, or 807, the out-of-court declarant must also be shown to have personal knowledge of the matter the statement relates. The same is true of prior statements defined as not hearsay by Rule 801(d)(1).¹³ That declarant's knowledge may appear from the statement itself or be inferable from the circumstances, so the proponent usually does not need a separate witness to establish it.¹⁴

The requirement travels with the declarant because the exceptions rest on circumstances that make the statement trustworthy, and those circumstances mean little if the speaker did not perceive what he described. A statement made under the stress of a startling event is reliable because the speaker's excitement left no room to invent, but that reliability presupposes that he actually saw the event. Imagine a bystander who arrives after a crash and exclaims, "The truck ran the light!" Her excitement is real, yet she may be reporting only a guess or something another bystander told her. If the evidence shows she did not see the collision, the statement fails for want of personal knowledge in the declarant. If instead the circumstances show she was standing at the corner when the truck went through, the statement may come in as an excited utterance.

Statements of a party opponent are the exception to the exception. A statement admissible against the party who made it under Rule 801(d)(2) does not require a showing that the declarant had personal knowledge of the matter stated.¹⁵ Consider an invented defendant who tells a coworker, "My brakes failed, which is why I hit the fence," when in fact he only learned about the brakes from a mechanic's report. The statement can still be offered against him. The usual explanation is that the other exceptions depend on features of the statement that make it reliable, while a party's own words are offered against that party, who is in no position to demand that his own statement be tested before it is used against him. The mechanics of the party-opponent rule belong to later readings on hearsay, and what matters here is the contrast: a declarant's lack of personal knowledge defeats a statement offered under the exceptions but does not defeat a party's own admission.

Choosing the Right Objection

A witness who tells the jury something she could not have seen can draw two different objections, and the lawyer who picks the wrong one may lose a point that was otherwise good. Rule 602 provides that a witness may testify to a matter only if evidence is introduced sufficient to support a finding that she has personal knowledge of it.¹⁷ The hearsay rule is a separate doctrine with a separate trigger. The requirement of firsthand knowledge is the older of the two and shares some of the hearsay rule's policy, but the two should be kept apart.¹⁸ What separates them is the form of the testimony, so the first task is to read the form correctly.

The form matters because each rule closes a different gap. Rule 602 addresses a gap in perception: the witness presents a fact as something she knows directly, yet nothing in the record shows she was in a position to observe it. The hearsay rule addresses a gap in testing: the witness reports what an absent speaker asserted, and the jury can neither watch that speaker nor can the opponent cross-examine him. A judge who hears the label "lack of personal knowledge" looks at whether the witness could have perceived the matter. A judge who hears "hearsay" looks at whether an out-of-court assertion is being used for its truth. An objection that names the wrong gap sends the judge to examine a problem the testimony does not present.

The airport example shows the split. Suppose a witness testifies that a certain flight arrived on time at a particular airport, and the rest of her testimony shows she was in another city that day. She could only be speaking from conjecture or from what others told her, and she purports to give the fact on her own credit, so the proper objection is want of personal knowledge, not hearsay.¹⁹ Now change one fact. Suppose a different witness testifies that his brother told him he came in on the flight and that it arrived on time. An objection that the witness lacks knowledge of when the plane arrived is inappropriate, because he purports to speak only from his knowledge of what his brother said, and as to that he presumably has knowledge. If the testimony is offered to show the plane's arrival time, the appropriate objection is hearsay.²⁰

Sometimes both objections fit at once. Imagine a witness who testifies, "I know the defendant did it, everyone in the neighborhood says so." She has personal knowledge only of what people in the neighborhood think happened, not of the defendant's conduct, so her testimony about the conduct should be stricken.²¹ If it is offered to prove that what the neighbors say is what happened, it is also inadmissible as hearsay.²² The two objections are not mutually exclusive, and the careful lawyer may make both.

The line also blurs when the testimony itself does not reveal its source. Where the phrasing or other evidence shows that the witness is relying on reports from others, though not repeating anyone's statements, the distinction loses much of its significance, and courts may simply apply the label "hearsay."²³ In that situation a hearsay objection generally suffices. The opposite error is the risk to avoid. A flat hearsay objection to a witness who has mentioned no statement at all may be overruled, because the testimony presents no out-of-court assertion for the judge to exclude. The remedy is to read the testimony and decide which defect it actually shows.

Testifying About Out-of-Court Statements

A witness who repeats something another person said is really testifying to two different things, and Rule 602 reaches only one of them. The first is the fact that the words were spoken, which the witness may have heard with her own ears. The second is the event the words describe, which she may know nothing about. Rule 602 allows a witness to testify to a matter only if there is evidence sufficient to support a finding that she has personal knowledge of it.²⁵ So the rule asks a narrow question here: did she perceive the making of the statement?

The Advisory Committee's note to Rule 602 draws exactly this line. The rule does not govern a witness who testifies to a hearsay statement as such, so long as she has personal knowledge that the statement was made, and the hearsay rules (Rules 801 and 805) take over from there. The same note adds the limit: Rule 602 would still prevent her from testifying to the subject matter of the statement, because she has no personal knowledge of it.²⁶ The same holds when the statement is defined as not hearsay under Rule 801(d) or fits an exception in Rule 803, 804, or 807. The witness needs personal knowledge of the statement itself, and she does not need personal knowledge of the matter the statement relates.²⁷

The reason is visible in what each kind of knowledge allows the other side to test. A witness who heard the words can be cross-examined about where she stood, how clearly she heard, and whether she remembers them accurately. That is exactly the testing the personal-knowledge requirement exists to secure. What she cannot supply is the speaker's perception of the underlying event, and that gap is policed by the hearsay rules and by the declarant's own knowledge, discussed in the next sub-section. The requirement also keeps the hearsay rule from being evaded. If a witness could drop the attribution and say flatly that the defendant sold cocaine instead of saying she heard he did, the out-of-court source would vanish from the testimony and the hearsay rule would have nothing to catch.²⁸

The street-condition example shows both halves in one witness. A person who saw the street, or felt its slipperiness underfoot, has personal knowledge that it was slippery. A person who believes the street was slippery only because someone else saw it and told him has personal knowledge of one thing: that someone else thought so.²⁹ Now apply the same logic to an invented store manager who investigates a customer's fall. A bystander tells him, moments afterward, that the customer was running around the aisles before the accident. The manager did not see the customer's conduct, so he cannot testify in his own voice that the customer was running. He did hear the bystander speak, so he may testify that the bystander said those words.³⁰ Whether the jury may then treat the words as proof that the customer was running is a hearsay question. It would depend on an exclusion or exception such as the present sense impression, which in turn requires that the bystander herself perceived what she described.³¹

The two requirements therefore stack, and satisfying one does nothing toward satisfying the other. A witness who repeats a statement clears Rule 602 by showing she heard it. If the statement is offered to prove what it asserts, the proponent must still find a route around the hearsay rule. If the statement is offered for some purpose other than its truth, the hearsay problem does not arise, but the witness is still confined to what she heard and cannot adopt the statement's content as her own knowledge.

Declarants and Party Statements

The last two subsections dealt with the witness on the stand who repeats what someone else said. That witness needs personal knowledge only of the fact that the words were spoken. The requirement does not vanish at that point, because it passes to the person who spoke. When a statement is offered for its truth under a hearsay exception, the question becomes whether the speaker, the out-of-court declarant, actually perceived what was described. The party-opponent rule then departs from that pattern, and the reason for the departure is worth working out.

Start with why the exceptions do not wipe out Rule 602. The exceptions in Rules 803 and 804 are written as nonapplications of the hearsay rule rather than as positive grants of admissibility, so that other grounds for exclusion remain available. Relevance, authentication, and personal knowledge all still have to be satisfied.³³ The Advisory Committee's note puts the point directly: "In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge."³⁴ The reason follows from what each exception offers. Each one substitutes some circumstance of trustworthiness (excitement, contemporaneity, a regular business routine, the belief that death is near) for the cross-examination the opponent never gets. Those circumstances show that the declarant was sincere and had no time to invent. They say nothing about whether the declarant saw the event. A sincere report of something the speaker never perceived is still a guess, or a relay of someone else's account.

The declarant's knowledge need not be proven by a separate witness. It may appear from the statement itself or be inferred from the circumstances, such as the speaker's position at the scene.³⁵ Even so, the proponent carries the burden, and affirmative signs of secondhand knowledge can defeat the foundation. A 911 call in a federal case shows both halves. The caller, Estep, spoke close in time to the events he described and with little chance to reflect, so the timing requirements of the present-sense-impression and excited-utterance exceptions were met. His closeness to the scene was some circumstantial evidence that he saw what he reported. The record also showed that he conceded at one point that he could not describe what was happening outside and could be heard repeating the words of an unidentified voice in the background. The proponent did not call him to explain, and the trial court refused the statement. The court of appeals held that refusal was within the trial court's discretion, because there were affirmative indications that the declarant lacked firsthand knowledge.³⁶ Change one fact and the result flips. A caller who says, "I am looking out my window at the gunman," and nothing in the call suggests otherwise, supplies enough through the statement and surrounding circumstances. Courts do show some hesitancy about admitting such a statement on nothing more when the caller is unidentified.³⁷

The same logic governs records admitted as business records. Rule 803(6) requires that the record be made by, or from information transmitted by, someone with knowledge, which means the person who originally feeds the information into the system must have firsthand knowledge.³⁸ That person need not be identified. Evidence that observing the matter was someone's business duty in the organization's routine is prima facie enough to establish actual knowledge.³⁹ Suppose a receiving clerk logs each shipment from the dock as it arrives, and the log is offered through the custodian. The chain starts with someone whose job was to count the goods, so personal knowledge is satisfied. Now suppose an entry records a delivery only because a passing driver mentioned it to the clerk, and the driver had no business duty to report. The link that supplies the knowledge is missing, and the entry is not saved by the regularity of everything that happened afterward. In general, where an out-of-court declarant had not observed the fact declared, the deficiency goes to substance rather than form and is often fatal when the statement is offered to prove the fact.⁴⁰ The same requirement applies to dying declarations and the other exceptions in Rules 803 and 804.⁴¹

Statements of a party opponent follow a different rule. When a party's own statement is offered against that party under Rule 801(d)(2)(A), the statement need not relate to a matter of which the party had personal knowledge.⁴² The other exceptions rest on circumstances that make a statement reliable, so a missing perception defeats them. An admission is admitted because it is the opponent's own statement, and the opponent has no standing to complain that he was not cross-examined on words he chose to speak. The system accepts the risk that a party may have spoken without firsthand knowledge. The principle extends to agents. In a suit over an animal bite, an employee of a wildlife center, Mr. Poos, had put up a note on a door and made statements about the animal in his custody, though he had no personal knowledge of the underlying facts. The trial court excluded the statements. The appellate court held that his own statements were admissible against him, that his statements within the scope of his employment were admissible against the center as an agent's statements, and that no implied personal-knowledge requirement should be read into that rule. It added that the board minutes could not be used against him, because nothing in Rule 801(d)(2) reached an employee who did not attend the meeting.⁴³ The exemption is a limit on the foundation requirement and not on every rule of exclusion. Lack of personal knowledge may still be weighed in deciding whether Rule 403 permits exclusion of an admission.⁴⁴