Hearsay

HEARSAY

A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.

It is the job of the judge or jury in a court proceeding to determine whether evidence offered as proof is credible. Three evidentiary rules help the judge or jury make this determination: (1) Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful. (2) The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand. (3) The witness is subject to cross-examination at the option of any party who did not call the witness to testify.

In keeping with the three evidentiary requirements, the Hearsay Rule, as outlined in the federal rules of evidence, prohibits most statements made outside a courtroom from being used as evidence in court. This is because statements made out of court normally are not made under oath, a judge or jury cannot personally observe the demeanor of someone who makes a statement outside the courtroom, and an opposing party cannot cross-examine such a declarant (the person making the statement). Out-of-court statements hinder the ability of the judge or jury to probe testimony for inaccuracies caused by ambiguity, insincerity, faulty perception, or erroneous memory. Thus, statements made out of court are perceived as untrustworthy.

Hearsay comes in many forms. It may be a written or oral statement; it also includes gestures. Essentially anything intended to assert a fact is considered a statement for the purposes of the Hearsay Rule. A nodding of the head may be a silent assertion of the word yes. A witness pointing to a gun may be asserting, "That is the murder weapon." Even silence has been accepted as a statement, as when a passengers' failure to complain was offered to prove that a train car was not too cold (Silver v. New York Central Railroad, 329 Mass. 14, 105 N.E.2d 923 [1952]).

Not all out-of-court statements or assertions are impermissible hearsay. If an attorney wishes the judge or jury to consider the fact that a certain statement was made, but not the truthfulness of that statement, the statement is not hearsay and may be admitted as evidence. Suppose a hearing is held to determine a woman's mental competence. Out of court, when asked to identify herself, the woman said, "I am the pope." There is little question that the purpose of introducing that statement as evidence is not to convince the judge or jury that the woman actually is the pope; the truthfulness of the statement is irrelevant. Rather, the statement is introduced to show the woman's mental state; her belief that she is the pope may prove that she is not mentally competent. On the other hand, a defendant's out-of-court statement "I am the murderer," offered in a murder trial to prove that the defendant is the murderer, is hearsay.

The Federal Rules of Evidence outline the various types of statements that are excluded by the Hearsay Rule, and are thus admissible in court. These exceptions apply to circumstances believed to produce trustworthy assertions. Some hearsay exceptions are based on whether the declarant of the statement is available to testify. For example, a witness who has died is unavailable. A witness who claims some sort of testimonial privilege, such as the attorney-client privilege, is also unavailable to testify, as is the witness who testifies to lack of memory regarding the subject matter, or is too physically or mentally ill to testify. These definitions fall under Rule 804 of the Federal Rules of Evidence. There are also situations where hearsay is allowed even though the declarant is available as a witness. These situations are outlined under Rule 803 of the Federal Rules of Evidence.

Hearsay Exceptions: Availability of Declarant Immaterial

1. Present Sense Impression. "A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," is admissible hearsay (Fed. R. Evid. 803(1)). An example is the statement "That green pickup truck is going to run that red light."

Nicole Brown Simpson's Journals: Inadmissible as Hearsay

During the 1995 criminal trial of o. j. simpson, the prosecution argued that Simpson killed his former wife Nicole Brown Simpson, and that the murder was the culmination of a long pattern of domestic violence. The prosecution discovered in a safe-deposit box journals that Brown Simpson had written concerning her problems with Simpson. The journals contained graphic language and described episodes of physical violence and threats committed by Simpson. They appeared to be a powerful demonstration of the couple's relationship, yet they were never entered into evidence at the criminal trial, and Simpson was acquitted in the killings of his former wife and her friend Ronald Lyle Goldman.

The journals were inadmissible because they constituted hearsay evidence. The rules of evidence are generally the same in every state and federal jurisdiction. In California, where Simpson's criminal trial was held, hearsay evidence cannot be admitted unless it meets the requirements of a well-defined exception.

Oral hearsay (what one person tells another about a third person) is the same as written hearsay. In her journal Brown Simpson told readers what Simpson did to her. With her death, there was no way for the defense to challenge her memory, perception, and sincerity about what she had written. The rules of evidence view such nonchallengeable out-of-court statements as unreliable when they are intended to prove the truth of the matter they assert—here, that Simpson had beaten Brown Simpson, stalked her, and made her fear for her life.

For the same reasons, the journals were not admitted at Simpson's civil trial in 1997, in which he was found liable for the wrongful deaths of Brown Simpson and Goldman.

cross-references

Simpson, O. J.

• 2. Excited Utterance. "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible hearsay (Fed. R. Evid. 803(2)). For example, "The robber is pointing a gun at the cop!" is admissible.
• 3. Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing intent, plan, motive, design, mental feeling, pain, or bodily health is admissible (Fed. R. Evid. 803(3)). Generally, however, a statement of memory or belief to prove the fact remembered or believed is not. For example, "After eating at that restaurant, I'm feeling rather ill" could be admitted under this exception. But the out-of-court statement "I believe Julie to be the murderer" would not be admitted under this exception.
• 4. Statements for Purposes of Medical Diagnosis or Treatment. A statement describing medical history, or past or present symptoms, pain, or sensations, or the general character of the cause or external source of those symptoms, is admissible (Fed. R. Evid. 803(4)). For example, this statement made to a physician following an accident is admissible: "I slipped and fell on the ice, and then my left leg became numb."
• 5. Recorded Recollection. "A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately" is admissible (Fed. R. Evid. 803(5)). The record must have been made when the matter was fresh in the witness's memory and must reflect that knowledge correctly. One example is a detailed phone message.
• 6. Business Records. A record, report, or memo of a business activity made by an individual who regularly conducts the business activity is exempt from the hearsay prohibition under this rule (Fed. R. Evid. 803(6). Written minutes of a business meeting are a common example. The normal absence of information contained in these types of business records may also be excluded from the hearsay prohibition (Fed. R. Evid. 803(7)).
• 7. Public Records and Reports. A record, report, statement, or data compilation, in any form, of a public office or agency, setting forth the activities of the office or agency or matters for which there is a legal duty to report, is admissible. Voting records of a city council are an example. Matters observed by law enforcement personnel in criminal cases are excluded under this rule (Fed. R. Evid. 803(8)).
• 8. Records of Vital Statistic. A data compilation, in any form, of births, fetal deaths, other deaths, or marriages, if the report is made to a public office pursuant to requirements of the law, is a hearsay exception (Fed. R. Evid. 803(9)).
• 9. Records of Religious Organizations. A statement contained in a regularly kept record of a religious organization may be exempt from the prohibition against hearsay. Some examples are statements of birth, marriage, divorce, death, legitimacy, ancestry, relationship by blood or marriage, or similar facts of personal or family history (Fed. R. Evid. 803(11)).
• 10. Marriage, Baptismal, and Similar Certificates. "Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter," are admissible (Fed. R. Evid. 803(12)).
• 11. Family Records. "Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones" are hearsay exceptions (Fed. R. Evid. 803(13)).
• 12. Records of Documents Affecting an Interest in Property. A record purporting to establish or affect an interest in property, such as a notice of a tax lien placed on a house, is admissible hearsay if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
• 13. Statements in Ancient Documents. A statement in a document in existence 20 years or more, the authenticity of which is established, is admissible hearsay. One example is a statement in a letter written 30 years ago, provided the letter's authenticity can be proved.
• 14. Market Reports, Commercial Publications. "Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations," are exceptions to the rule against hearsay (Fed. R. Evid. 803(17)).
• 15. Learned Treatises. Statements contained in a published treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of an expert witness, are admissible (Fed. R. Evid. 803(18)).
• 16. Reputation Concerning Personal or Family History. A reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning the person's birth, adoption, marriage, divorce, death, ancestry, or legitimacy is an exception to the rule against hearsay. For example, the out-of-court statement "My sister was adopted," although hearsay, is admissible (Fed. R. Evid. 803 (19)).
• 17. Reputation Concerning Boundaries or General History. "Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located," are admissible (Fed. R. Evid. 803(20)). For example, "Stein's land extends south to the river" involves the reputation of a land's boundary and falls within this exception.
• 18. Reputation as to Character. The "reputation of a person's character among associates or in the community" is admissible hearsay (Fed. R. Evid. 803(21)). One example is the statement "Sergei has never said a dishonest word."
• 19. Judgment of Previous Conviction. A plea or judgment of guilt for a crime punishable by death or imprisonment of more than one year is admissible hearsay (Fed. R. Evid. 803(22)).

Hearsay Exceptions When the Declarant Is Unavailable to Testify

1. Former Testimony. Testimony given as a witness at another hearing in the same or a different proceeding, or in a deposition, is admissible when the declarant is unavailable, provided the party against whom the testimony is now being offered had the opportunity to question or cross-examine the witness (Fed. R. Evid. 804(1)).
2. A Statement Made Under the Belief of Impending Death. A statement made by a declarant who, when making the statement, believed death to be imminent, is admissible to show the cause or circumstances of the death. For example, the statement "Horace shot me," made moments before the declarant died, is admissible for the purpose of proving that Horace committed murder (Fed. R. Evid. 804(2)).
3. A Statement Against the Declarant's Interest. A statement that, at the time of its making, was contrary to the declarant's pecuniary or proprietary interest, or that subjected the declarant to civil or criminal liability, is admissible if the declarant is unavailable to testify. For example, the statement "I never declare all my income on my tax returns" could subject the declarant to criminal tax fraud liability, and is thus an admissible statement against interest (Fed. R. Evid. 804(3)).
4. A Statement of Personal or Family History. A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, or similar fact of personal family history is admissible hearsay when the declarant is unavailable to testify (Fed. R. Evid. 804(4)).

further readings

Binder, David F. 2001. Hearsay Handbook. 4th ed. St. Paul, Minn.: West Group.

Cleary, Edward W., ed. 1999. McCormick on Evidence. 5th ed. St. Paul, Minn.: West Group.

Darden, Christopher, with Jess Walter. 1996. In Contempt. New York: HarperCollins.

Fenner, G. Michael. 2003. The Hearsay Rule. Durham, N.C.: Carolina Academic Press.

Friedman, Richard D. 1998. "Truth and Its Rivals in the Law of Hearsay and Confrontation." Hastings Law Journal 49 (March).

Kessel, Gordon Van. 1998. "Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach." Hastings Law Journal 49 (March).

Waltz, Jon R., and Roger C. Park. 1999. Evidence: Cases and Materials. 9th ed. New York: Foundation Press.

Ziemer, David. 2002. "Hearsay Statements Must Be Considered Individually." Wisconsin Law Journal (October 2).