Hearsay Evidence

The rule against hearsay evidence in criminal cases is deceptively simple but full of exceptions. At its core, the rule against using hearsay evidence aims to prevent secondhand statements from getting admitted in the trial as evidence, given their potential unreliability. It prevents the use of gossip to convict someone.


This article discusses the definition of hearsay and some of the most common exceptions to the rule.

Hearsay Rule Defined

Hearsay is an out-of-court statement used to prove the truth of what was said. For example, a police officer testifies about what an eyewitness said to them at a crime scene. In general, prosecutors can't use this testimony to actually prove what happened.

These out-of-court statements are not limited to only spoken words. They can also be documents, written statements, or body language. For example, nodding is non-verbal conduct to indicate yes.

Exceptions to the Rule Against Hearsay Evidence

Under the general rule, hearsay is not admissible in court unless a statute or rule provides otherwise. So, even if a statement is hearsay that was made out of court and not under oath, it may still be admissible if an exception applies. The Federal Rules of Evidence (FRE) contain nearly thirty exceptions to the hearsay rule.

Generally, state criminal 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. These allow for the admission of out-of-court statements, even if the person who made them, known as the declarant, is available to appear in court. However, only a handful of these are regularly used. The three most popularly used exceptions are:

  • Present Sense Impression: A statement about what the declarant perceived when it describes or explains an event or condition and was made during the event or immediately after it. For example, when a bystander exclaims, "That car is driving pretty fast," shortly before a car crash.
  • Excited Utterance: This exception applies during or shortly after a startling event, and the declarant made the statement while under the excitement or stress of the event. For example, when a victim of a crime makes a statement to a police officer about a purse snatching in the grocery store.
  • Then-Existing Mental, Emotional, or Physical Condition: A statement that is not offered for its truth but instead to show the state of mind, emotion, or physical condition exhibited. For instance, testimony that there was a heated argument offered to show a person was angry and not for what was said.

Other Exceptions to Rule Against Hearsay Evidence

There are several other statements not excluded by the rule against hearsay. These apply regardless of whether the declarant is available as a witness and fall into three categories:

  • Medical: Statements 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 public 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. The court will consider a declarant unavailable when the declarant:

  • Is not required to testify by law, e.g., spousal privilege
  • Refuses to testify
  • Does not remember what happened
  • Is either dead or has a physical or mental illness that prevents testimony
  • Is absent from the trial and cannot be located

If the declarant is unavailable, then the following types of evidence are admissible in court. This includes:

  • Former testimony: Admissible because of the prior opportunity for cross-examination
  • Dying declarations: Statements made under the belief of imminent death
  • Statements against a person's own interest: The court assumes a reasonable person would not say it unless true
  • Statements of personal or family history: Familiarity can make these admissible

Catchall Exception to the Rule Against Hearsay

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 admissible if it meets the following conditions:

  • It has sound guarantees of trustworthiness
  • It helps 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 must receive reasonable notice about the intent to offer this kind of evidence.

Defenses Against Hearsay Evidence

If the court admits hearsay evidence under an exception, the other party can attack the credibility of the person offering the statement. The process of discrediting a witness' testimony is impeachment. You can undermine the opposing party by introducing prior inconsistent statements, 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 or other criminal proceeding, the government may rely on several pieces of evidence to prosecute your 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.

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