In California libel and slander cases, defendants sometimes dispute the elemental fact of “publication” of defamatory statements, asserting that the Hearsay Rule bars introduction of unauthenticated evidence to prove publication occurred. “Hearsay evidence” is that of a statement made outside court to prove the truth of what a party asserts. Such evidence cannot be cross-examined. It is so highly suspect it is inadmissible.
The Hearsay Rule, however, is subject to an important exception. A plaintiff seeking to introduce hearsay evidence that defendant published the defamatory statement at all, may legitimately introduce out-of-court statements to prove certain things were written or spoken. The question is not whether the evidence shows truth or falsity of the alleged defamatory statements, but whether their publication happened.
In May 2014, a California Appeals Court noted the exception.
“Where ‘“the very fact in controversy is whether certain things were said or done and not… whether these things were true or false, … in these cases the words or acts are admissible not as hearsay[, ] but as original evidence.’” The court added, “For example, documents containing operative facts, such as the words forming an agreement, are not hearsay.” (citations omitted)
Such statements are admissible not as hearsay but as “original evidence.” Defendants should pay careful attention to this important exception to the Hearsay Rule.