Hearsay Evidence and Mental Health Professionals

Hearsay evidence refers to testimony offered in court based on what another person has said and offered to prove the truth of the matter asserted. Courts generally prohibit hearsay evidence due to concerns about its reliability (Barsky, 2024). If I were to testify, “Ms. X told me that Mr. Y stole her car,” the judge or jury would have no way to verify the truth of this statement without Ms. X’s testimony. Although I could testify about what Ms. X said, wouldn’t it be better for Ms. X to testify herself? If Ms. X testified herself, Mr. Y.’s attorney could cross-examine her, asking questions to verify her story, test her memory and honesty, and help the court determine the accuracy of her evidence. Different types of courts have different levels of strictness about prohibiting hearsay evidence. For instance, criminal courts tend to be very strict, whereas family courts tend to be less strict.

Exceptions to the Hearsay Rule

Although courts have a general rule prohibiting hearsay evidence, there are many exceptions to the hearsay rule (Federal Rules of Evidence, 2023). In a criminal case, for instance, a witness may testify about the accused’s admissions of guilt: “Mr. Y told me that he stole the car.” Other exceptions to the hearsay rule include public records, business records, testimony from a witness at a prior trial, and statements made by a person believing they are about to die. Courts allow such testimony because they are made in contexts where they are likely to be reliable. Additional exceptions may exist based on similar reasoning, so you may consult an attorney if you are not sure about whether you can provide certain types of information.

Why Mental Health Professionals Rely on Hearsay

Mental health professionals (MHPs) often rely on hearsay when clients share their concerns, their stories, their hopes, and their dreams. This information, although sometimes unverified, is crucial for formulating assessments and treatment plans. When clients share that they have experienced abuse, discrimination, love, or hallucinations, MHPs may have no direct evidence about the truth of these stories, yet still rely on these accounts. Unlike courts, MHPs do not have a prohibition against hearsay and often use hearsay to understand and help clients.

When MHPs Are Testifying in Court

When MHPs testify about clients, the strongest evidence may be evidence of direct observations, for instance, observations of the client’s behavior, interactions with others, or specific indicators of mental health, mental illness, or other conditions that are relevant to the issues in dispute. Although direct information may be the strongest evidence, MHPs are allowed to rely on hearsay evidence when providing expert opinions (Federal Rules of Evidence, 2023). In fact, it is crucial that MHPs provide the basis for their opinions when presenting expert evidence. During cross-examination, MHPs may be challenged about their information-gathering processes and their reliance on hearsay information. Accordingly, MHPs should be prepared to describe their information-gathering processes, how they followed evidence-based protocols for assessing their clients, and whether they have gathered information from more than one source to confirm their findings. If they have used evidence-based instruments to assess their clients, they may also describe whether they used validity scales, structured interviews, behavioral observations, or other methods to assess the veracity of the client’s responses.

Conclusion

When testifying in court, MHPs should offer the best evidence available to support the truth of their statements. If their sources of information are not completely reliable, it is honest and appropriate to let the court know these sources are less than perfect. It is also appropriate to let the court know what professional and clinical standards were followed, as well as the degree of certainty that the MHP has in the information provided. When providing expert evidence, MHPs may rely on hearsay evidence. However, they should also consider whether they can strengthen their evidence by explaining what protocols were followed and why they believe that their opinions are substantiated within a reasonable degree of professional certainty.