Hearsay - Module 6 of 6
See Also:
Module 6: Hearsay
Introduction to The
Hearsay Rule
Witnesses in our justice
system are supposed to testify from firsthand knowledge. It is for juries to
determine whether a witness is credible, how much weight to assign a witness’
testimony and what inferences to draw from it. The hearsay rule is a corollary
to this principle. It prohibits witnesses from testifying as to what other
people told them to ensure that people testify only as to what they observed
firsthand.
Moreover, the hearsay
rule is designed to protect the efficacy of cross examination, which allows
opposing parties to try to impeach witness’ testimony or draw testimony that
might mitigate the value to the other parties. However, if the witness is
testifying as to what someone else told her, cross-examination can be
ineffective.[1]
Consider a witness who
testifies that he saw a red Toyota run a stop sign. The opposing attorney might
ask the witness if he is nearsighted, if he’s biased against the driver of the
red Toyota or if he was really at another location at the time of the accident.
The witness would have to answer these questions under oath and under penalty
of perjury and the jury would get the chance to assess his credibility.
On the other hand,
consider the same witness testifying, “Jane told me that she saw the red Toyota
run the stop sign.” Now, the opposing attorney’s questions would have to focus on
whether Jane is nearsighted, whether Jane is
biased against the driver of the red Toyota or if Jane was
really at another location at the time of the accident. The witness might not
know any of these answers. It’s Jane’s credibility that’s really at
issue and the jury never gets to see Jane cross-examined and never gets to
assess Jane’s credibility.
It is primarily for this
reason that the U.S. Constitution’s Sixth Amendment guarantees a criminal
defendant the right to confront his accuser.[2]
Hearsay also applies to
earlier statements made by the current witness. For example, if a witness says,
“According to my notes that I took at the time, I saw the red Toyota run the
stop sign,” that is hearsay. Although the witness is there to be cross-examined,
it is the witness’ statement at the time of the note-taking that is really at
issue. For example, if the opposing attorney asks, “Were you wearing your
glasses at the time?” the witness might respond “I don’t remember. I only know
what my notes say, and my notes don’t say anything about glasses.”
Because the focus of the
hearsay rule is to avoid questionable evidence being admitted without being
subject to cross-examination, the rule is narrow in scope and subject to
myriads of exceptions. In the remainder of this module, we will focus on when
the hearsay rule applies and on its most common and important exceptions.
Note that there are two
relevant parties to any hearsay discussion: The “witness” is the person now
testifying. This person is subject to cross-examination and so the hearsay rule
is NOT designed to prevent that person from testifying. The ‘declarant” is the
person whose statement is being repeated. This person is not subject to
cross-examination and thus the rule’s target.
When the Hearsay Rule
Applies
Under Federal Rule 801,
hearsay is an out of court statement offered for the “truth of the matter asserted.”[3] A
“statement” does not have to be verbal. It can include a head nod (as in, “I
asked Jane whether the red Toyota was speeding, and she nodded.”), a signature
on a statement, a point of a finger or anything that can be construed as making
an assertion.
The “truth of the
matter asserted” requirement means that a statement is only hearsay if the
truth of the statement and the credibility of the declarant are important. If
the statement has no truth value or if truth value is irrelevant, then the
statement is not hearsay.
For example, testimony
that someone else engaged in a “verbal act” is not hearsay.[4] A “verbal
act” (also sometimes referred to as “legally operative language”) is
accomplishing something through words rather than making an assertion.
Testifying that someone made an offer, accepted an offer or advertised a
product is not hearsay. A witness may testify that “Joan offered to sell her
car to Dave for $5,000 and Dave agreed.” While the witness is attesting to two
out-of-court statements (those of Joan and Dave), neither are offered for their
truth and neither’s value depends in any way on the credibility of the
declarants. It makes no difference whether Joan and Dave are credible. The
witness is merely testifying as to their acts (offering and accepting a
contract), not their assertions. The jury doesn’t need to see Joan or Dave
cross-examined since their credibility is irrelevant.
By the same token, if
a statement is offered to show the state of mind of the declarant or for its
effect on the listener, it’s not hearsay. Imagine Don is on trial for
assaulting Rich. Sue testifies that, prior to the incident, she heard Don say,
“I can’t believe that no good jerk Rich has been sleeping with my girlfriend! I
thought he was my friend!” This is not hearsay. While Don is the declarant and
his statement is out-of-court and may or may not be true, it makes no
difference whether it’s true. It’s being offered to show that Don was
angry at Rich. This is shown equally regardless of whether Rich really slept
with Don’s girlfriend.
Alternatively, assume
the witness testified that Sheila told Don that Rich had been sleeping with
Don’s girlfriend to show that Don had a motive to be angry at Rich. Whether
Sheila’s statement is true is irrelevant. Either way, it could potentially have
the effect of making Don angry at Rich. As such, it is not hearsay.
Finally, Rule 801(d)
identifies two types of statements that are “not hearsay” (though, in fact,
they are technically hearsay but are exempted from the hearsay rule):[5]
1. A declarant’s prior statement under oath at a
trial, hearing or deposition, that is inconsistent with her prior statement.
If, for example, Debbie says at a deposition that the Toyota was red, but later
testifies at trial that the Toyota was green, a party may introduce her
deposition statement to show that the Toyota was green or to show that Debbie
is mistaken or lying. The rule also allows a similar prior statement that’s
consistent with the present testimony to rebut a “charge that the declarant
recently fabricated it.” So, if Debbie said at a deposition and at trial that
the Toyota was speeding but is accused on cross-examination of recently
changing her story, her proponent may introduce her deposition testimony to
show that her story has been consistent.
2. The “admission” of a party opponent. In a
civil case, this means that either party may introduce evidence of a statement
by the opponent or an agent or authorized representative of the opponent. In a
criminal case, this means that the prosecution can introduce evidence of
statements by the defendant. This rule is the reason confessions of criminal
defendants are admissible. Note that while the rule uses the term “admission,”
any statement of a party opponent qualifies.
Hearsay Exceptions –
Declarant’s Availability Immaterial
Rule 803 lists 23
exceptions to the hearsay rule.[6] Their common thread is that their
circumstances indicate that they are reliable assertions. Since they’re
reliable, it’s not critical that the jury get to see the declarant’s demeanor
or see him get cross-examined. The information is reliable on its own and is
thus admissible. The Rule 803 exceptions apply whether or not the declarant is
available.
The first Rule 803
exception is the “present sense impression.” This allows testimony that the
declarant described events as they were occurring. The theory here is that
people don’t generally lie when describing an event as it’s occurring. For
example, if a person calls “911” and says, “There’s a fight going on outside my
window and the big dude in the black sweater is pounding the little guy in
red,” the “911” operator can testify as to what the caller said, even if the
caller is never identified.
The exception doesn’t
require that the description be literally simultaneous with the events. As the
New York Court of appeals explained, it would be “virtually impossible to
describe a rapidly unfolding series of events without some delay between the
occurrence and the observer’s utterance.”[7] Still, the “description of
events must be made ‘substantially contemporaneously’ with the observations.” A
person making a 911 call and describing a fight that happened 20 minutes ago
and is now over would not be a present sense impression.
The second Rule 803 exception
is the “excited utterance rule,” which allows testimony of a declarant’s
statement that relates to “a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” The theory is
that people’s spontaneous excited statements are rarely calculated enough to be
lies. For example, let’s assume our caller in the previous example waits until
the fight is over to call 911, but then describes the fight as, “WOW! That big
guy in the black sweater nearly KILLED the little guy in red!!!!”
Rule 803(3) allows a
statement of the declarant’s “then-existing state of mind.” So, if the witness
testifies that “Joan told me she was angry” or “tired” or “had a headache,” the
testimony is admissible even if offered for its truth (that Joan was angry or
tired or had a headache). The rule also allows evidence of state of mind to
show what may have occurred thereafter. Testimony that a person stated at 5 PM
that he intended to go to Restaurant A at 7 PM can be used to show his
attendance at Restaurant A at 7 PM.[8] In fact, the rule allows evidence
of state of mind to show where someone else may have been at a given time. So,
testimony that Jane stated at 5 PM that she intended to go to Restaurant A at 7
PM to meet John can be admitted to show that John was at
Restaurant A at 7 PM.[9]
Rule 803(4) allows
statements made for purposes of obtaining medical diagnosis or treatment (on
the theory that people don’t usually lie when seeking medical treatment).
Nothing in the rule limits the exception to where the statement is made to a
medical professional, but it must be made to someone who could be reasonably
calculated to assist with medical treatment.
Rule 803(5) allows
recorded recollections. If a witness “once knew” something “but now cannot
recall well enough to testify fully and accurately,” but has notes on the
matter from when it was “fresh in the witness’s memory,” she may testify as to
the contents of those notes.
Subsections 6 and 7 allow
records of a “regularly conducted activity” (or the absence of such records) if
the records were made in the ordinary course of business. So, for example, a
prosecutor may introduce the content of a hospital record or corporate meeting
minutes even though those constitute hearsay.
Most of the rest of
the Rule 803 exceptions relate to official documents like public records, birth
and marriage certificates, deeds and family records and to textbooks,
newspapers and the like. While these were presumably all written by people who
are not now testifying and are thus hearsay, they are considered independently
reliable and thus admissible. That doesn’t mean they’re always accurate, of
course, or that the jury must believe them, but they’re considered reliable
enough to at least allow into evidence. Opinion and reputation testimony
allowed under Rule 404 (the character evidence rules) is also exempted from the
hearsay rules even though they inevitably arise from second-hand information
and thus would be inadmissible hearsay were it not for the exceptions.
Hearsay Exceptions –
Declarant Unavailable
Rule 804 sets forth
another list of hearsay exceptions with an important caveat: these apply only
when the declarant is unavailable. A declarant is considered unavailable if she
is exempted from testifying due to privilege (such as attorney-client), refuses
to testify despite a court order, does not remember the incident or is dead,
disabled, too ill to testify or otherwise cannot be brought to testify.
There are five hearsay
exceptions under Rule 804:[10]
1. Former Testimony. This allows in the statement of the
unavailable declarant when the statement was given at a prior trial, hearing or
deposition, if the opposing side in that hearing had the opportunity to
cross-examine.
2. Dying Declaration. This allows testimony made while the
declarant believed death to be imminent. Note that the declarant need not have
died at the time or be dead now; he must merely have thought that he was going
to die imminently.
3. Statement Against Interest. This includes statements against the declarant’s “proprietary
or pecuniary” interest and those that tend to invalidate a claim of the
declarant or subject him to civil or criminal liability. Examples include a
declarant admitting to owing money, admitting that a deed in his favor is
fraudulent and confessing to having committed a crime.
4. Statement of Personal History. This includes a declarant’s statement about
her lineage, family history and so forth and includes the declarant’s similar
statements about close relatives.
5. Statement offered against a party that
wrongfully caused the declarant’s unavailability. This allows witnesses to testify as to
statements made by declarants who were killed, intimidated or otherwise
rendered unable to testify by the defendant or someone working for the
defendant.
Other Hearsay Rules
Finally, we’ll
conclude our hearsay discussion with the special hearsay rules under Rules
805-807 of the Federal Rules of Evidence.
Rule 805 governs
hearsay within hearsay. Sometimes, testimony contains multiple layers of
hearsay, [11] such as “Don told me that Sue told him that the silver
Chevy ran the red light.” Such testimony is admissible only if each level of
hearsay is covered by a hearsay exception. For example, if Wally Witness
testified, “Doug told me on the phone that Sarah was jumping up and down and
screaming that the Chevy was going at least 100 MPH,” the testimony is probably
admissible although it is hearsay within hearsay. Sarah’s statement to Doug is
covered by the excited utterance exception. Doug’s statement to Wally was a
present sense impression.
Rule 806 says that
when hearsay is allowed, the opposing side may impeach the declarant in the
same manner that other witnesses may be impeached.[12] It may be recalled
that opponents may impeach witnesses, including through evidence of bias,
dishonesty and certain other “bad acts” that impugn the witness’ truthfulness.
For example, Lisa’s testimony that John told her that his neck hurt him after a
car accident is admissible under Rule 803(3) because the declarant is
describing a then-existing medical condition. However, the opponent may bring
evidence that John has a reputation for being a liar or that John had a motive
to lie – to try to collect damages for his injuries.
Finally, Rule 807
provides a catch-all exception that allows hearsay to be admitted if it
contains “circumstantial guarantees of trustworthiness,” is offered as evidence
of a material fact, cannot be proven by other means and “admitting it will best
serve the purposes of these rules and the interests of justice.”[13] Though
this is a high threshold to meet,[14] it allows courts to admit evidence
that is reliable for reasons not anticipated in Rules 803 and 804. For example,
a federal appellate court allowed the government to produce a letter from a partnership's bankruptcy
trustee waiving the partnership’s attorney-client privilege under the residual
exception.[15] The Second Circuit also allowed the statement of the
defendants’ co-conspirator when it deemed that she had no reason to lie, under
the same exception.[16]
Conclusion
Thank you for viewing
LawShelf’s video-course in Evidence. We hope that you now have a clearer
understanding of evidence and the circumstances under which it can be admitted.
We encourage you to take advantage of our other courses in the litigation field
and welcome your feedback.
[1] James Allen, The Working and Rationale of the Hearsay Rule and the Implications of Modern Psychological Knowledge, 44 Current Legal Problems 217, 217 (1991), https://academic.oup.com/clp/article-abstract/44/1/217/339457?redirectedFrom=PDF.
[4] See Advisory Committee Note to Rule 801.
[5] Fed. R. Evid. 801(d).
[15] See United States v. Campbell, 73 F.3d 44, 48 (5th Cir. 1996).
[16] See United States v. Morgan, 385 F.3d 196, 208-09 (2d Cir. 2004).