Hearsay Evidence

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 Defined

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:

  1. Present Sense Impression. A hearsay statement may be allowed if it describes or explains an event or condition and was made during the event or immediately after it.
  2. Excited Utterance. Closely related to the present sense impression is the hearsay exception for an excited utterance. The requirements for this exception to apply is that there must have been a startling event and the declarant made the statement while under the excitement or stress of the event.
  3. Then-Existing Mental, Emotional, or Physical Condition. A statement that is not offered for the truth of the statement, but rather to show the state of mind, emotion or physical condition can be an exception to the rule against hearsay evidence. For instance, testimony that there was a heated argument can be offered to show anger and not for what was said.

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:

  • Medical: Statements that are made to a medical provider for the purpose of diagnosis or treatment.
  • Reputation: Statements about the reputation of the person, their family, or land boundaries.
  • Documents: These documents typically include business records and government records, but can include learned treatises, family records, and church records.

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:

  1. The court recognizes that by law the declarant is not required to testify;
  2. The declarant refuses to testify;
  3. The declarant does not remember;
  4. The declarant is either dead or has a physical or mental illness the prevents testimony; or
  5. The declarant is absent from the trial and has not been located.

If the declarant is deemed to be unavailable, then the following type of evidence can be ruled admissible in court. This includes:

  1. Former testimony;
  2. Statements made under belief of imminent death;
  3. Statements against a person's own interest; and
  4. Statements of personal or family history.

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:

  • 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

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.

Next Steps

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