Some legal errors survive not because the statute is obscure, but because they are repeated until they begin to sound self-evident. One of them has been present for years in Colombian criminal practice: treating hearsay evidence (prueba de referencia) and the so-called hearsay or indirect witness (testigo de referencia) as though they were the same concept.

The confusion is not limited to students. It can be heard among experienced litigators, in advanced classrooms and, at times, in judicial arguments and decisions. That is why the distinction should be stated at the outset, before turning to statutory exceptions and methods of admission.

THE DISTINCTION FROM THE OUTSET
The hearsay or indirect witness is a person whose knowledge of the event is indirect: the person knows because someone else told them. Hearsay evidence, in the Colombian statutory sense, centers on an out-of-court statement made by a person who did have personal knowledge of the event, when the truth of that prior statement is sought to be proved at trial through a legally admissible medium. A third concept is the authentication or sponsoring witness, who may authenticate or introduce a record without thereby becoming a direct witness to the events described in it.

These are not interchangeable expressions. They are related, but they answer different questions: who perceived the event, which out-of-court statement is being offered for its truth, and through what evidentiary mechanism that information reaches the trial.

The question that organizes the entire analysis is simpler than any label: How does this person know what they are asserting?

Article 402: how does the witness know what the witness claims to know?

Article 402 of Colombia’s Criminal Procedure Code is titled “Personal knowledge.” Its rule requires a witness to testify about matters the witness had an opportunity to observe or perceive directly and personally.

Before asking whether a witness is credible, remembers accurately, or is consistent with other evidence, there is a prior question: what is the source of the witness’s knowledge?

Assume Andrés personally witnesses a homicide. He sees the assailant, observes the shooting and watches what happens. He later meets Carlos and describes the event in detail.

Andrés has direct knowledge of the homicide. Carlos does not. Carlos has direct knowledge of something else: the conversation with Andrés. He may know where it occurred, how long it lasted and what words he heard. But directly perceiving the account is not the same as directly perceiving the event being recounted.

If Carlos appears at trial and says the accused fired the shot because Andrés told him so, Carlos does not thereby become a witness to the homicide. As to the shooting itself, his source remains indirect.

The confusion begins when “hearsay witness” and “hearsay evidence” are used as synonyms

Precision is particularly important here because judicial terminology can itself encourage the confusion when read too quickly. Colombia’s Criminal Chamber has explained that indirect or hearsay testimony can be a species or a means of hearsay evidence. Yet the same jurisprudential framework separates the components: there is an out-of-court statement by a person who had direct personal knowledge, and there is a means of proof offered to establish the truth of that prior statement; a hearsay witness may be one such means.

In other words, the fact that hearsay testimony can serve as a vehicle for hearsay evidence does not make the hearsay witness the prior statement itself, nor does it turn that witness into the original source of the event. The vehicle does not become the source.

Article 437 does not define a special class of person. It defines an out-of-court statement used to prove or disprove substantial matters in the case when the statutory conditions are met.

One question is therefore who knew the event. A different question is what procedural treatment may be given to that person’s earlier statement.

The hearsay statement must originate from a person with personal knowledge of the event

This point should remain visible throughout the analysis. The out-of-court statement whose truth is sought to be introduced as hearsay evidence must concern facts the original declarant had an opportunity to perceive directly and personally. The Criminal Chamber has expressly linked that requirement to Article 402.

Return to Andrés. He witnessed the homicide and later gave a statement describing what he saw. If circumstances later permit exceptional use of that earlier statement, Andrés remains the original source of the knowledge.

Carlos may, depending on the evidentiary rules, become one of the means through which the existence and content of that statement are proved. But Carlos does not thereby acquire personal perception of the homicide. The evidentiary mechanism carries someone else’s personal knowledge to the trial; it does not retroactively create direct knowledge in a person who never had it.

This is the cleanest way to separate the concepts: hearsay evidence preserves as its original source the person who directly knew the event; the hearsay witness, when used, is a possible evidentiary vehicle for that other person’s knowledge.

The statement and the medium that preserves it

An earlier statement need not be preserved only on a signed sheet of paper. It may be fixed in writing, audio, video, digital records or another medium capable of preserving what was said.

If Andrés’s earlier account was recorded and later admitted as hearsay evidence, the evidentiary object is that earlier statement. The medium preserves the statement; it does not replace the declarant.

Nor should the statement be confused with a third person’s later memory of what the declarant said. If all that exists is a witness recalling someone else’s words, the analysis must proceed under the rules governing indirect testimony and hearsay evidence; the third person cannot be treated as if they perceived the underlying event.

Article 438: admissibility is exceptional

Law 906 does not allow unrestricted use of prior statements. Hearsay evidence is exceptional. Article 438 identifies admissibility situations, while Article 379 reinforces the ordinary rule of immediacy.

The reason is straightforward. If the original source does not appear at trial, the defense loses or materially limits the ability to confront that person about perception, memory, language, circumstances of the statement and credibility. The hearsay regime therefore cannot become a shortcut for evidentiary preparation.

Article 381 adds another safeguard: a conviction may not rest exclusively on hearsay evidence. Exceptional admissibility does not erase the nature or limitations of the evidence.

Article 439: a mixed statement must be filtered, not treated as an indivisible block

Article 439 is especially useful in this discussion because a single statement may contain admissible hearsay portions and inadmissible ones. The Code does not require the entire account to receive a single label.

The inadmissible hearsay portions must be removed. If that filtering makes the remaining statement unintelligible, the statement must be excluded in its entirety.

  1. First: identify what the declarant personally perceived and what merely repeats another person’s knowledge.
  2. Second: identify which portions are offered to prove the truth of an out-of-court assertion.
  3. Third: determine whether each such portion satisfies the applicable admissibility rules.
  4. Fourth: remove inadmissible material and retain only what may legally remain.
  5. Fifth: if the filtering destroys intelligibility, exclude the statement as a whole.

Article 439 therefore does not simply mean “exclude everything that is not direct.” Its operation is more exacting: it requires the court to disaggregate the statement and prevents an admissible portion from becoming a conduit for material that does not satisfy the hearsay exceptions.

Hearsay evidence does not suddenly appear at trial

Another common simplification is to assume that a prior statement automatically becomes hearsay evidence when the party discovers during trial that the declarant is unavailable. That is not the statutory structure.

Discovery, request and admission matter. The Criminal Chamber has repeatedly differentiated prior statements according to the purpose for which they are used, and it has rejected attempts to use memory refreshing or credibility impeachment as a back door for material that was not properly requested as substantive evidence.

SP337-2023 returned to that logic: a prior statement offered as evidence must respect evidentiary due process. Physical existence is not enough; there must be legal admission for the purpose for which the statement will be used.

The authentication or sponsoring witness: a third concept

Assume Andrés’s earlier statement was discovered, requested and admitted. Depending on the medium and the circumstances in which it was obtained, a person may have to identify, authenticate or sponsor its admission.

That person is the authentication or sponsoring witness. The role is distinct from being a direct witness to the underlying event and distinct from the hearsay statement itself.

An investigator may personally know that an interview was received, that a recording was made in the investigator’s presence, or that a particular file was collected and preserved. The investigator may testify to those matters because they were personally perceived. But if the investigator did not witness the homicide, authentication does not convert the investigator into a witness to the homicide.

THREE QUESTIONS, THREE LEVELS
Source of the event: who perceived it?  ·  Hearsay statement: what did that direct source say outside trial?  ·  Admission: through what legally admissible mechanism does that statement reach the trial?

What cannot be done

Andrés witnessed the homicide. Andrés told Carlos. Andrés later dies.

Andrés’s death does not retroactively change the source of Carlos’s knowledge. Carlos still did not witness the homicide. What changes is a different question: whether an earlier statement by Andrés satisfies the requirements for hearsay evidence and through what medium it may be proved.

This avoids two opposite mistakes. The first is treating Carlos as a direct witness to an event he never perceived. The second is saying Carlos can never have any evidentiary function. He may have one, but if his testimony is used to prove the truth of another person’s personal knowledge, it must be analyzed as hearsay evidence, with the corresponding requirements and limitations.

Not every sentence a witness heard from another person is hearsay evidence

Article 402 does not prohibit a witness from testifying to words personally heard.

If a person is present when the accused threatens the victim, the witness may testify that the threat was spoken because the utterance itself was directly perceived. If the legally relevant fact is that the threat was made, the witness has personal knowledge of that fact.

The analysis changes when the words are used to prove the truth of an earlier event described within them. The question is no longer merely whether someone spoke; it is whether what that person said was true.

The practical question remains the same: what precise fact is being proved, and how did the witness personally come to know it?

Proving that someone said something is not the same as proving that what was said was true

A witness may directly know that a statement existed because the witness was there and heard it. That does not mean the witness has direct knowledge of the events described in the statement.

The Criminal Chamber has used this distinction directly: when A heard B accuse C of a homicide and A is called to prove that C was in fact the killer, the party is trying to introduce someone else’s personal knowledge. If A is called only to prove that B made the statement, the fact being proved is different—the existence of the statement, which A personally perceived.

The terminally ill witness: when the direct source still exists

Anticipated evidence provides another useful example. If the true direct witness is alive but there is a serious risk that the witness will not be available at trial, the system provides mechanisms to preserve that testimony under judicial control and with adversarial safeguards.

The logic is revealing: while the true source of knowledge still exists, the system seeks to preserve that source. It does not need to manufacture a fictional substitute for what another person never perceived.

Roxin, Maier and Cafferata Nores: the source of knowledge matters

This concern is not peculiar to the vocabulary of Law 906. Behind it lies a classic criminal-procedure question: how knowledge reaches the judge and what safeguards accompany that path.

Claus Roxin’s discussion of immediacy stresses the importance of the decision-maker’s contact with the evidence supporting the judgment. Julio B. J. Maier distinguishes knowledge of the event, the means through which that knowledge enters the proceeding, and the actors involved in producing evidence. José I. Cafferata Nores, in his treatment of testimonial evidence, returns to a basic point: the “science of the statement” identifies where the witness’s claimed knowledge actually comes from.

Their doctrinal constructions differ, but they converge on a common concern: the legal quality of evidence also depends on how the knowledge was obtained and on the safeguards through which it reaches the court.

Civil procedure takes a different approach

The comparison with civil procedure helps show that this is not merely a semantic debate. Colombia’s General Code of Procedure handles indirect testimony differently. Article 221 requires inquiry into the basis of the witness’s knowledge and expressly contemplates statements about expressions the witness heard.

In that setting, much of the problem shifts toward evaluation of source, circumstances and weight. Law 906, by contrast, contains the specific personal-knowledge rule in Article 402 and a distinct regime for prior statements offered as hearsay evidence.

Intuitions from one procedural system should not be imported into another when the statutory designs differ.

The distinction, in the end

The concepts can now be stated simply.

  • Direct witness: personally perceived the event being described.
  • Hearsay or indirect witness: knows the event because another person communicated it; if the testimony is used to prove the truth of that other person’s personal knowledge, it operates as a means of hearsay evidence and is subject to that regime.
  • Hearsay evidence: the evidentiary category built around an out-of-court statement by a person with personal knowledge of the event, offered for the truth of what was asserted and subject to the statutory rules of admissibility.
  • Authentication or sponsoring witness: authenticates the medium or explains the circumstances of collection and admission; that role does not make the person a direct witness to the events described in the statement.

That is the real problem. Using the expressions as though they were identical mixes different questions: who perceived the event, which out-of-court statement matters, and through what mechanism that statement reaches trial.

Perhaps it is not surprising that a student may confuse them at the beginning of evidence law. What is more striking is that, after years of Law 906, the same conceptual confusion still appears among experienced lawyers, professors, judges and appellate decision-makers.

Before using the phrase “hearsay evidence,” it is therefore worth returning to the most elementary question in testimonial proof:

How does this person know what they are asserting?

Legal and doctrinal sources