Hearsay

Hearsay in its most general and oldest meaning is a term used in the law of evidence to describe an out of court statement offered to establish the facts asserted in that statement. Hearsay is generally not admissible in common law courts because it is of suspect value, but there are many exceptions to this prohibition.

Hearsay exceptions and exclusions

The fact that a statement is hearsay does not automatically mean that it is inadmissible in court. While hearsay is generally inadmissible as evidence in common law legal proceedings such as litigation there are many exceptions, some (but far from all) of which apply only when the original speaker (known as the declarant) is unavailable.

Related Topics:
Evidence - Common law - Litigation - Declarant

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Many of the exceptions listed below are treated more extensively in individual articles.

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Non-Hearsay

• Party admissions: any statements made by a declarant who is a party to the case that are offered against that party, even if that declarant had no basis for knowing the truth of the statement. For example, if an employee rushes to tell the director of a trucking company that one of his trucks has been in an accident, and the director says, "oh, we're behaving so negligently, lately," that statement will be admissible - even though the manager had no reason to know that this particular accident was the result of negligence. This is probably the most important category of exceptions to the inadmissibility of out-of-court statements. Party admissions are considered NON-HEARSAY, and NOT an EXCEPTION to the hearsay rule.
• Vicarious admissions: are admissions that are receivable against parties other than the one who made them. Applicable against co-conspirators or in a respondeat superior situation, but not against mere co-defendants.
• Prior Statement of Identification

Hearsay exceptions that apply even where the declarant is available

• Excited utterances: statements relating to startling events or condition made while the declarant was under the stress of excitement caused by the event or condition. This is the exception that may apply to the 'police officer' scenario listed above. The victim's cries of help were made under the stress of a startling event, and the victim is still under the stress of the event, as is evidenced by the victim's crying and visible shaking. An excited utterance does not have to be made at the same time of the startling event. A statement made minutes, hours or even days after the startling event can be excited utterances, so long as the declarant is still under the stress of the startling event. However, the more time that elapses between a startling event and the declarant's statement, the more the statements will be looked upon with disfavor.
• Present sense impressions: A statement expressing the declarants impression of a condition existing at the time the statement was made, such as "it's hot in here", or "we're going really fast". Unlike an excited utterance, it need not be made in response to a startling event. Instead, it is admissible because it is a condition that the witness would likely have been experiencing at the same time as the declarant, and would instantly be able to corroborate.
• Declarations of present state of mind: Much like a present sense impression describes the outside world, declarant's statement to the effect of "I am angry!" or "I am Napoleon" will be admissible to prove that the declarant was indeed angry, or did indeed believe himself to be Napoleon at that time. Used in cases where the declarant's mental state at issue. Present state of mind statements are also used as circumstantial evidence of subsequent acts committed by the declarant. (like him saying "I'm gonna go buy some groceries and get the oil changed in my car on my way home from work.")

Another exception is statements made in the course of medical treatment, i.e., statements made by a patient to a medical professional to help in diagnosis and treatment. Any statements contained therein that attribute fault or causation to a individual will generally NOT be admissible under this exception, unless it involves a small child. (The "Tender Years" doctrine).

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• the business records exception: business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the records are introduced into evidence. Depending on which jurisdiction the case is in, either the records custodian or someone with knowledge of the records must lay a foundation for the records, however.

The use of Police records, especially as substantive evidence against the accused in a criminal trial, is severely restricted under the Business Records exception. Typically, only generalized evidence about police procedure is admissible under this exception, and not facts about a specific case. For example, John is stopped for speeding 70 miles per hour in a 50 mile per hour zone. The officer, who determined John's speed with radar, records the speed in an incident report. He also calibrates and runs a diagnostic on his radar every day prior to beginning his shift. He records this in a log. At trial, the report itself would not be admissible as it pertained to the facts of the case. However, the officer's daily log in which he records his calibration and the daily diagnostics of his radar unit would be admissible under the business records exception.

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• Other exceptions, declarant's availability immaterial:In the United States Federal Rules of Evidence, separate exceptions are made for public records, family records, and records in ancient documents of established authenticity. When regular or public records are kept, the absence of such records may also be used as admissible hearsay evidence.

Hearsay exceptions that apply only where the declarant is unavailable

• dying declarations and other statements under belief of impending death: often depicted in movies; the police officer asks the person on his deathbed, "Who did it" and the victim replies, "The butler did it".
• declarations against interest: the declarant made a statement, such as confessing to a crime or admitting liability for a tort, that goes so clearly against the declarant's own interest that a reasonable person would not make such an admission unless the person believed it were true. This differs from a party admission because here the declarant does not have to be a party to the case, but must have a basis for knowing that the statement is true. Furthermore, evidence of the statement will only be admissible if the declarant is unavailable to testify.
• prior testimony: if the testimony was given under oath and the party against whom the testimony is being proffered was present and had the opportunity to cross examine the witness at that time. Often used to enter depositions into the court record at trial.

Theories supporting hearsay exceptions

In some jurisdictions such as Canada the limited exceptions format to the rule have been replaced by a more general theory of exceptions to the hearsay rule that allows courts to decide when documents, testimony or other evidentiary proof can be used that might not otherwise be considered. .

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The underlying rationale for many of the hearsay exceptions is that the circumstances of a particular statement make them reliable enough to be heard by a trier of fact. Statements made during the course of medical treatment, for example, are considered reliable because patients typically have little reason to lie to a doctor while they are being treated, and will generally be accurate in describing their ailments.

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This, of course, is not always true. Patients do sometimes lie to their doctors (to get painkillers they are not entitled to, for example). Hearsay exceptions do not mandate that a trier of fact accept the hearsay statement as true. Hearsay exceptions only mean that the trier of fact (a judge or jury) will be informed of the hearsay statement and get to consider it when they make their decision in the case. They are free to disregard a hearsay statement if they do not believe it. The hearsay rule only controls what out of court statements a trier of fact gets to consider in deciding a case, not how they consider the out of court statements.

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