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"Hearsay" Evidence

The rule against hearsay is deceptively simple and full of exceptions. Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated. For example, Witness A in a murder trial claimed on the stand: "Witness B (the "declarant") told me that the defendant killed the victim." The definition of hearsay is not too difficult to understand. But the matter can become very confusing when one considers all of the many exceptions to the general rule against hearsay.

Even if a statement meets the requirements for hearsay, the statement may yet be admissible under one of the exceptions to the hearsay rule. The FRE contains nearly thirty of these exceptions. Most of them are generally available, although a few of them are limited to times when the declarant is unavailable.

There are twenty-four exceptions in the federal rules that do not require proof that the person who made the statement is unavailable. These are:

  1. Business records, including those of a public agency
  2. Certain public records and reports
  3. Evidence of a judgment of conviction for certain purposes
  4. Evidence of the absence of a business record or entry
  5. Excited utterances or spontaneous statements
  6. Family records concerning family history
  7. Judgments of a court concerning personal history, family history, general history, or boundaries, where those matters were essential to the judgment
  8. Learned treatises used to question an expert witness
  9. Market reports, commercial publications, and the like
  10. Marriage, baptismal, and similar certificates
  11. Past recollections recorded
  12. Recorded documents purporting to affect interests in land
  13. Records of religious organizations concerning personal or family history
  14. Records of vital statistics
  15. Reputation concerning boundaries or general history
  16. Reputation concerning family history
  17. Reputation of a person's character
  18. Statements about the declarant's present sense impressions
  19. Statements about the declarant's then existing mental, emotional, or physical condition
  20. Statements in authentic ancient documents (at least 20 years old)
  21. Statements in other documents purporting to affect interests in land and relevant to the purpose of the document
  22. Statements made by the declarant for the purpose of medical diagnosis or treatment
  23. Statements of the absence of a public record or entry
  24. The "catchall" rule

 

The last exception, the so-called "catchall" rule, bears some explanation. This rule does not require that the declarant be unavailable to testify. It does say that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:

  • It has sound guarantees of trustworthiness
  • It is offered to help prove a material fact
  • It is more probative than other equivalent and reasonably obtainable evidence
  • Its admission would forward the cause of justice
  • The other parties have been notified that it will be offered into evidence
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