Hearsay

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Background

In the United States, testimonial evidence is hearsay if:

  1. a statement
  2. made our of court
  3. by the declarant
  4. offered for the truth of the matter asserted.
  • Statement - A statement may be an oral or written assertion and it may also be nonverbal conduct of the person.
  • Declarant - Declarant is 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. Simply because it was said (defamatory statement)
    2. or because the statement itself is all that matters "I accept" for contract formation.
  3. Impeachment during Cross-examination. In this case, the evidence is not offered for the truth, it is offered 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 part. Finally, the witness cannot be cross-examined by the defendant. Because of these defects, the defendant cannot test the witnesses reliability, memory, ability to perceive or their sincerity.

Hearsay Exceptions

In the United States there are several exceptions to the hearsay rule. They 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 case.

  • 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,
  • Declarant is absent and the proponent of the statement has been unable to proecure the declaran't attendance by process or reasonable means.

A declarant is no longer "unavailable" if their unavailability was brought about by wrongdoing for the purpose of preventings 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 Exist 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



See Evidence