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In the United States, testimonial evidence is hearsay if it is:

  1. A statement
  2. Made out of court
  3. By the declarant
  4. Offered for the truth of the matter asserted.
  • Statement: may be an oral or written assertion or nonverbal conduct of the person.
  • Declarant: a person making a statement.
    • Neither a machine nor an animal are considered declarants under the hearsay rule.
  • Offered for the truth of the matter asserted: in certain cases, evidence may be admissible because it is not offered for the truth of the matter asserted. For instance, the evidence may be for its:
  1. Effect on the listener (notice)
  2. Verbal Act / Publication. [Words have independent legal significance.]
    1. Because it was said (defamatory statement) or
    2. Because the statement itself is all that matters (e.g., "I accept" for contract formation).
  3. Impeachment during cross-examination.
    1. In this case, the evidence is not offered for the truth, but rather to prove the inconsistency of the witness.
  4. Circumstantial evidence of the speaker's state of mind, aka consciousness of innocence

Hearsay even includes the witnesses own testimony about what she said prior to trial.

  • Example: "I told Dexter it was raining outside."

Hearsy includes both oral and written evidence. Double Hearsay.

  • Example: "I told Dexter that Frank wanted to go out on Friday night"

Hearsay should be inadmissible at trial because the evidence suffers from defects which cannot be remedied. First, the testimony is offered without an oath. Second, the demeanor or the witness cannot be gauged when the testimony is delivered by a third party. The jury cannot evaluate its probative value. Finally, the witness cannot be cross-examined by the defendant. Under the adversarial system, the opportunity to cross-examine is essential to the admissibility of the testimony. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or sincerity.

Hearsay Exceptions

In the United States there are several exceptions to the hearsay rule. Hearsay is inadmissible unless the evidence is necessary, reliable, the probative value outweights the prejudicial value, or it fulfills a traditional exception.

Exceptions can generally be grouped into two categories. In the first, the testimony is admissible only if the declarant is unavailable. In the second category the hearsay is admissible regardless of whether the declarant is available or not.

These exceptions are based on the theory that in certain situations, hearsay is more reliable.

The Definition of Unavailable

A declarant may be considered "unavailable" in many cases.

  • Declarant refuses to testify despite a court order,
  • Declarant is dead or unable to be present because of physical or mental illness,
  • Declarant testifies to a lack of memory of the subject matter,
  • Declarant is exempted from testifying to subject matter because on grounds of privileged statements, or
  • Declarant is absent and the proponent of the statement has been unable to procure the declarant's attendance by process or reasonable means.

A declarant is no longer "unavailable" if their unavailability was brought about by wrongdoing for the purpose of preventing the witness from attending or testifying at the trial.

Exceptions that Apply when Declarant is Unavailable

  • Former Testimony
  • Statement Under Belief of Impending Death
  • Statement Against Interest
  • Statemetn of Personal or Family History
  • Forfeiture by Wrongdoing

Exceptions that Apply Regardless of Declarant Availability

  • Present Sense Impression
  • Excited Utterance
  • Then existing mental, emotional, or physical condition
  • Statement for purpose of medical diagnosis or treatment
  • Recorded Recollection
  • Business Records Exception
  • Absence of Business Records
  • Public Records and Reports
  • Records if Vital Statistics
  • Absence of Public Record or Entry
  • Records of Religious Organizations
  • Marriage, Baptismal and Similar Certificates
  • Family Records
  • Records of Documents Affecting an Interest in Property
  • Statements in Documents Affecting an Interest in Property
  • Ancient Documents
  • Market Reports, Commercial Publications
  • Learned Treaties
  • Reputation Concerning Personal or Family History
  • Reputation Concerning Boundaries or General History
  • Reputation as to Character
  • Judgement of Previous Conviction
  • Judgment as to Personal, Family or General History or Boundaries

Non-Hearsay Uses of Out-of-Court Statements

Non-hearsay out-of-court statements are statements offered to prove some other relevant fact than the truth of its contents. There are three protential uses:

  1. Words of Legal Consequence (sometimes referred to as verbal acts): the law attaches consequences to certain verbal acts. Consider the law of contracts or torts (fraudulent representation or defamatory words).
  2. Circumstancial Evidence of State of Mind: (e.g. spontaneous statements). Look at res gestae exceptions where a person makes a statement under extreme duress. The statement is admissible (so stressed out and do not know what they are doing, so have no opportunity to concoct a story). The statement would be used to show that the individual was stressed out or hysterical. There are also implied assertions, such as particular circumstantial use of the words or conduct of a person who is not a witness. It requires a double inference from words or conduct. First, it must infer that the person had certain knowledge about something in his environment. Next, it must infer that the thing was as the person believed it to be. Words spoken can be actions: they are non-hearsay if proving the state of mind - such as hysteria based on tone, only trying to prove that the narration occurred, not the content of the narration. Admissions of statement to indicate state of mind are not lead to prove the truth of what they say, but they may be used as circumstancial evidence allowing for indirect interferences.
  3. Circumstantial Evidence of Knowledge: refers to witnesses who have unique knowledge, or knowledge not generally known, that is used to narrow the field of suspects significantly (to possibly just the accused). Statements are not used to prove the truth for what is asserted in it, but used to illustrate the activities being conducted (e.g.: drug deal on the phone).

See Evidence