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Rules of Evidence: Hearsay

The hearsay rules are often a trial lawyer's bread and butter, providing numerous methods of either keeping evidence out or getting it admitted. But despite our best efforts to memorize these rules in our law school Evidence courses, it can be challenging to keep them straight. Below, we break down the hearsay rule and the most common exceptions, as well as recent changes to the Federal Rules. For a quick reference, check out this helpful infographic!

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Definition of Hearsay

On the surface, the rule against hearsay seems simple: An out of court statement offered to prove the truth of its content is not admissible as evidence.

The issue most often arises when a witness at trial gives testimony about something someone else said. Given the inherent unreliability of second-hand information, it makes sense that these statements are approached with caution in a trial setting. Hearsay can't be cross-examined, so we'd rather get the information from a witness who is in the room.

However, the application of the rule can get complicated, not to mention there are at least 27 exceptions (and those are just the ones explicitly stated).

Rule 801 of the Federal Rules of Evidence defines hearsay as:

  • A statement that the declarant (the person who made the statement) does not make while testifying at the current trial or hearing
  • Offered in evidence to prove the truth of the matter asserted in the statement

"Statements" can be a person's oral or written assertion, as well as nonverbal conduct.

Is the Statement Actually Hearsay?

The first step in the hearsay analysis is to determine whether the statement is hearsay in the first place. For example:

A witness in a contract action testifies that they heard their boss say, "I accept your offer."

At first glance, this sounds like hearsay. However, in a contract action, we probably don't care about whether this statement is true, only whether it was said at all. Therefore, it isn't hearsay.

It's essential to think through this step before doing any other analysis. You can save yourself a lot of time looking for an applicable exception if you can argue the statement isn't hearsay at all.

Statements That Look Like Hearsay - But Aren't

Federal Rule 801 addresses three types of statements that, although they fit the definition above, are not hearsay:

  • A witness's prior statements that are inconsistent with their present testimony
  • Statements on an out-of-court identification of a person
  • Statements by a party opponent

Like the example above, our analysis can stop here. If a statement falls into one of these categories, it doesn't matter if it sounds like hearsay.

Exceptions to the Hearsay Rule

Rule 803 of the Federal Rules of Evidence provides numerous exceptions to the hearsay rule. The most common are present-sense impressions, excited utterances, and statements on mental, emotional, or physical condition.

Other exceptions include:

  • A statement made for medical diagnosis or treatment
  • Recorded recollections
  • Documents including public records, business records, family records, and church records

Below, we dive a little deeper into the three most common exceptions.

Present-Sense Impression

A present-sense impression is a statement that describes or explains something that is happening in the world. The statement occurs either during the event or immediately after it.

For example, a witness testifies that, at the time of an accident, they heard someone say, "That car just ran a red light."

Although there is no definite line between a qualifying present-sense impression and a similar statement that is hearsay, the general rule of thumb is anywhere from a few seconds to 10-15 minutes. Present-sense impressions are generally not admissible when they are made hours or days after the event.

Excited Utterances

An "excited utterance" refers to a statement made while under the excitement or stress of an event. This exception requires a startling event or condition that the declarant is reacting to, and the statement is made while they are still experiencing the stress of it. In many cases, these statements are made to police by crime victims.

For example, someone who acts in self-defense might say: "I'm so sorry, I didn't mean to shoot him." If made in the minutes following the incident, this might come in at trial as an excited utterance.

There are no set rules about how much time can pass between the event and the statement for this exception to apply. However, we generally expect to see these statements immediately following a stressful event. The person should still be overcome by excitement or shock. Usually, if the person making the statement has had enough time to make something up, the statement won't fall under excited utterances.

Then-Existing Mental, Emotional, or Physical Condition

These statements show a state of mind, emotion, or physical condition instead of proving the truth of the statement. These statements are different from accounts of memory - they have to be about a situation that's occurring at the moment.

Statements on mental or emotional conditions include declarations of intent, such as "I'll make you pay for this!"

The Unavailable Declarant

The above exceptions do not require a showing that the declarant is unavailable. However, some exceptions do need counsel to prove that the declarant cannot testify, such as:

  • Dying declarations
  • Statements against interest
  • Former testimony of a witness offered against a party who had an opportunity to question the declarant

Dying declarations are statements made by someone who believes death is imminent and can be admitted to show the cause of death. Most often, they are used to identify an attacker.

Statements against interest expose someone to civil or criminal liability or are contrary to their financial/property interests. For example, if someone unavailable to testify said, "I've never paid the amount of taxes I should," that statement is admissible because it could subject them to tax fraud charges.

A declarant is considered unavailable if they:

  • Refuse to testify
  • Are exempted from testifying by law
  • Are dead or otherwise physically/mentally unable to testify
  • Are absent from the trial and cannot be located

The "Catch-All Provision"

Federal Rule of Evidence 807, known as the "catch-all provision" or "residual exception," states that a hearsay statement not covered by one of the many other exceptions can still be admitted. Revisions to the rule made in 2019 beefed up its usefulness, as it now allows hearsay evidence not covered by other rules so long as:

  • It is supported by sufficient guarantees of trustworthiness;
  • It is more probative on the point for which it is offered than any other reasonably obtainable evidence; and
  • The other parties have been notified of its intended use

The new version of the rule requires judges to consider the "totality of the circumstances" to determine trustworthiness, rather than relying on "equivalent guarantees" required by the previous version of the rule. It also expressly authorizes the use of corroborating evidence to prove trustworthiness.

Check Your Jurisdiction's Rules

The Federal Rules of Evidence are a good jumping-off point for hearsay analysis, but it's always a good idea to check your jurisdiction's rules. Some states have additional exceptions or have defined a different scope for exceptions listed in the Federal Rules.

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