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Hearsay Evidence

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Hearsay Evidence

        Verbal and written statements are commonly offered at hearings and trials to prove facts at issue in a case. Courts are required to exclude certain statements from evidence when they were made by parties not present to testify at the trial or hearing. These statements are referred to as “hearsay.” The type of statement that may be excluded as hearsay includes a person’s oral assertion, written assertion, or nonverbal conduct that is intended as an assertion. A head nod is an example of nonverbal conduct that is also an assertion. The party that originally made the statement that is being offered as evidence is referred to as the “declarant.”[1]

        Hearsay is:

(1)  a statement that the declarant does not make while testifying at the current trial or hearing and

(2)  offered to prove the truth of the matter asserted.[2]

Anytime a witness testifies to what another person said, and offers it as proof that what that other person said is true, then that evidence is being offered to prove the truth of the matter asserted. For example, in a family law case, Henry wants to testify that his wife’s mother, Mother May, stated that she saw the wife, Wendy, hit their child. Since Henry is testifying to what Mother May said, this testimony could be hearsay. If Henry is offering Mother May’s statement as proof that Wendy hit their child, then it is hearsay. Henry is not the proper person to testify about what Mother May said. Mother May must testify to what she observed.

On the other hand, suppose Henry is offering Mother May’s statement to show that Mother May and Henry communicate regularly about the child. Henry wants to support his claim that Mother May is an appropriate temporary guardian for the child. Henry is no longer trying to prove that Wendy actually hit their child. Since Henry is not offering this statement as proof that what Mother May said is true, the statement does not meet the definition of hearsay.

One nuance to the hearsay rule is that statements made by the opposing party in the current case are not hearsay. These statements are referred to as admissions and are admissible in court so long as the admission is being used against the opposing party.[3] Thus, if Wendy ever admitted to hitting the child, Henry could introduce Wendy’s admission into evidence and use it as proof that she did, in fact, hit the child.    

The difference is that in the second case, it is not important whether the statement made by Mother May is true or false. The key issue is that the conversation took place. Therefore, the statement is not considered hearsay. We normally exclude hearsay because the declarant is not present to have his credibility assessed by the jury and by cross examination. Here, the declarant’s credibility is not at issue. It doesn’t matter whether Mother May’s statement is true, so there is no reason to exclude her testimony due to credibility concerns.

Many exceptions to the hearsay rule exist to allow certain statements to be admitted as evidence. Some exceptions apply only when the declarant is not available to testify as a witness. However, the first set of exceptions below operate regardless of whether the declarant is available. Thus, for any statement that meets the requirements of these exceptions, a witness may testify to the statement, even when that witness is not the declarant and the declarant can be brought to court.

(1)  Present sense impressions are statements that explain an event or condition. These statements are made while the declarant immediately perceives the event or condition, or immediately after. [4] For example, a witness may properly testify to being a passenger in a vehicle and hearing the driver say “I’m driving way too fast right now” because this statement was made while the driver was perceiving the driving.

(2)  An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.[5] A witness screaming, “Oh my gosh, that car ran a red light!” directly after observing a car accident, is an example of an excited utterance. However, if that same witness makes this same statement five days later, then the statement was not made under the stress of excitement from the accident and is not an exited utterance.

(3)  A statement of then-existing mental, emotional, or physical condition expresses the declarant’s then-existing state of mind. The statement may express motive, intent, plan, emotion, sensory perception or physical condition. This exception does not apply to a statement expressing a memory or belief. Just like the present sense impression and excited utterance exceptions, a statement of then-existing mental, emotional or physical condition must be made close in time to the related event or condition.[6] A statement such as, “I am scared,” expresses a state of mind. The statement, “I remember being scared when the dog approached me,” expresses a memory that, if testified to by someone other than the declarant, would not fall within this exception.

(4)  A statement made for medical diagnosis or treatment must satisfy two requirements. First the statement must be made for, and be reasonably pertinent to, a medical diagnosis or treatment. Second, the statement must describe medical history or past or present symptoms or sensations, their inception or their general cause. This exception is broad and the statement does not need to be made directly to a medical provider, nor does the witness need to have medical training.[7] Witness testimony that the declarant stated, “I have had back pain for about five years,” to a hospital staff member falls within this exception.

(5)  The exception made for records of a regularly conducted activity is commonly referred to as the “business records exception.” This exception is used to admit written statements of an act, event, condition, opinion or diagnosis. The record must be made at, or near the time of the act, event, condition, opinion or diagnosis by someone with knowledge of the information in the record. The record must also be made and kept as part of the regularly conducted activity of a business, organization, occupation, or calling. Unlike the other exceptions discussed so far, in order to admit evidence under this exception, the testifying witness must be someone who is responsible for keeping the records, or be otherwise qualified to testify about how and why the records are kept.[8] For example, in a foreclosure case, a lender may want to admit mortgage documents into evidence. The mortgage documents would be considered hearsay unless the lender provides an employee whose job it is to maintain mortgage records. This employee must be able to testify that the record was made near the time the mortgage was created and that the record was kept as part of the regular course of business.

Police reports are another common example of a business record. However, a statement from a witness contained within a police report may not necessarily be admitted simply because the report itself qualifies as a business record. This presents the problem of ‘hearsay within hearsay’ where the hearsay document (the report) contains another layer of hearsay (a witness statement). To be admissible, each layer of hearsay will need to fall within an exception. For example, a witness may make a statement in a police report while still under the excitement of the event covered in the report. The police report can be admitted as a business record and the statement from the witness may be admitted as an excited utterance.

Regarding the exceptions that may be used only when the declarant is unavailable, a declarant is considered “unavailable” when any one of the following applies:

(1)  a court rule or privilege prevents the declarant from testifying;

(2)  the declarant refuses to testify after a court order has been issued;

(3)  the declarant testifies to not remembering the subject matter;

(4)  the declarant cannot testify because of death, a then-existing infirmity or physical/mental illness; or

(5)  the declarant is absent from the trial or hearing and the party seeking to present the declarant has not been able ensure the declarant’s attendance.[9]

The first exception requiring unavailability is for statements made by the declarant under the belief that death is imminent. These are commonly referred to as “dying declarations.” The declaration should be about the cause or circumstances of the declarant’s death.[10] If, for example, a victim is shot in the chest and yells, “Brian shot me,” this statement may be a dying declaration because the declarant could reasonably believe that death was imminent after being shot. 

Finally, a statement against interest is another exception used when the declarant is unavailable. This refers to a statement that is so contrary to the interest of the declarant, that it must be true. The statement can expose the declarant to liability or jeopardize a financial or ownership interest. The idea is that no reasonable person in the declarant’s position would make the statement unless that person believed the statement to be true.[11] An example of such a statement is when a driver apologizes to another driver for causing a collision. Since the statement exposes the declarant to liability, a reasonable person would not make the statement unless he or she believes it to be true.

The common thread throughout the exceptions is that hearsay is allowed when we have an independent reason to believe the declarant’s testimony is true. When there is no such independent confirmation of the declarant’s testimony, we do not allow the declarant to, in effect, testify through someone else’s mouth and thus avoid cross-examination and credibility assessment by the jury. Where there is a good reason to believe that the declarant’s statement is true, a cross-examination would be moot and a credibility determination is unnecessary. Therefore, there is no danger in allowing the hearsay to be admissible.


[1] Fed. R. Evid. 801(a), (b).

[2] Fed. R. Evid. 801(c).

[3] Fed. R. Evid. 801(d)(2).

[4] Fed. R. Evid. 803(1).

[5] Fed. R. Evid. 803(2).

[6] Fed. R. Evid. 803(3).

[7] Fed. R. Evid. 803(4).

[8] Fed. R. Evid. 803(6).

[9] Fed. R. Evid. 804(a).

[10] Fed. R. Evid. 804(b)(2).

[11] Fed. R. Evid. 804 (b)(3).