The rule against hearsay is deceptively simple, but it is full of exceptions. At its core, the rule against using hearsay evidence is to prevent out-of-court, second hand statements from being used as evidence at trial given their potential unreliability.
Hearsay is defined as an out-of-court statement, made in court, to prove the truth of the matter asserted. These out-of-court statements do not have to be spoken words, but they can also constitute documents or even body language. The rule against hearsay was designed to prevent gossip from being offered to convict someone.
Exceptions to the Rule Against Hearsay Evidence
Hearsay evidence is not admissible in court unless a statue or rule provides otherwise. Therefore, even if a statement is really hearsay, it may still be admissible if an exception applies. The Federal Rules of Evidence (FRE) contains nearly thirty of these exceptions to providing hearsay evidence.
Generally, state law follows the rules of evidence as provided in the Federal Rules of Evidence, but not in all cases. The states can and do vary as to the exceptions that they recognize.
Most Common Hearsay Exceptions
There are twenty-three exceptions in the federal rules that allow for out-of-court statements to be admitted as evidence even if the person made them is available to appear in court. However, only a handful of these are regularly used. The three most popularly used exceptions are:
Other Exceptions to Rule Against Hearsay Evidence
In addition to the three most common exceptions for hearsay, there are several other statements that generally will be accepted as admissible evidence. These fall into three categories:
Hearsay Exceptions if the Declarant is Unavailable to Testify in Court
There are exceptions to the rule against the admissibility of hearsay evidence that apply only when the declarant is unavailable. A declarant is considered unavailable in situations such as when:
If the declarant is deemed to be unavailable, then the following type of evidence can be ruled admissible in court. This includes:
Catchall Exception to the Rule against Hearsay
Finally, the last exception is the so-called "catchall" rule. It provides that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:
Defenses Against Hearsay Evidence
If the court admits hearsay evidence under one the exceptions, then the credibility of the person offering the statement may be attacked. This attack must be supported by admissible evidence, but can be prior inconsistent statement, bias, or some other evidence that would show that the declarant has a reason to lie or not to remember accurately.
Is It Just Hearsay, or Actual Evidence? Get Help From a Defense Attorney
If you're facing a criminal trial, there may be several pieces of evidence that the government is relying on for their case. However, that doesn't mean that the evidence is admissible in court. A skilled criminal defense attorney can challenge questionable evidence, such as hearsay statements, and help you prepare your strongest defense.