Hearsay

Introduction

The hearsay rule is one of the most important and complex rules of evidence. Under the Federal Rules of Evidence, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is presumptively inadmissible unless it falls within an established exception. The rule reflects concerns about the reliability of statements made outside the courtroom, where the declarant was not under oath, was not subject to cross-examination, and the jury cannot observe the declarant’s demeanor.

Defining Hearsay

FRE 801 defines hearsay as a statement that: (1) the declarant does not make while testifying at the current trial or hearing, and (2) a party offers in evidence to prove the truth of the matter asserted. A statement may be an oral or written assertion or nonverbal conduct intended as an assertion. The declarant is the person who made the statement.

A statement is hearsay only if it is offered to prove the truth of its content. If the statement is offered for another purpose, such as to show its effect on the listener, to show the declarant’s state of mind, or to provide context for other evidence, it is not hearsay. For example, notice of termination given to an employee is non-hearsay when offered to show that the employee had notice, not to prove the truth of the notice’s content.

Exclusions from Hearsay

FRE 801(d) excludes certain categories of statements from the definition of hearsay. Prior statements by a witness are not hearsay if the declarant testifies and is subject to cross-examination, and the statement is inconsistent with the testimony, consistent with the testimony and offered to rebut a charge of recent fabrication, or an identification of a person after perceiving them.

Opposing party statements by a party opponent are not hearsay. These include statements made by the party in an individual or representative capacity, statements adopted by the party, statements by an authorized speaker, statements by an agent or employee within the scope of the relationship, and coconspirator statements made during and in furtherance of the conspiracy.

Hearsay Exceptions: Declarant Unavailability

Certain hearsay exceptions require the declarant to be unavailable as a witness. Declarant unavailability includes: the declarant is exempted from testifying by a court ruling on privilege; refuses to testify despite a court order; testifies to not remembering the subject matter; is dead or cannot attend due to physical or mental illness; or is absent and the proponent cannot procure attendance by reasonable means.

Exceptions requiring unavailability include: former testimony (testimony given at a previous proceeding under oath and subject to cross-examination); dying declarations statements made under a belief of imminent death about the cause or circumstances of the impending death; statements against interest (statements so contrary to the declarant’s pecuniary or proprietary interest that a reasonable person would not have made them unless true); and statements of personal or family history.

Hearsay Exceptions: Availability Irrelevant

Many hearsay exceptions do not require a showing of declarant unavailability. These include: present sense impressions (statements describing or explaining an event made while or immediately after perceiving the event); excited utterances (statements relating to a startling event made under the stress of excitement); then-existing mental, emotional, or physical condition (statements of the declarant’s then-existing state of mind, emotion, sensation, or physical condition).

Additional exceptions include: statements for medical diagnosis or treatment; recorded recollection; records of regularly conducted activity (the business records exception); public records and reports; and the residual exception (statements with equivalent circumstantial guarantees of trustworthiness that are offered as evidence of a material fact).

The Confrontation Clause and Crawford

The Sixth Amendment’s Confrontation Clause gives criminal defendants the right to confront witnesses against them. In Crawford v. Washington (2004), the Supreme Court fundamentally changed the relationship between the Confrontation Clause and the hearsay rules. The Court held that the Confrontation Clause bars the admission of testimonial hearsay from declarants who are unavailable to testify unless the defendant had a prior opportunity for cross-examination.

Testimonial statements include grand jury testimony, prior trial testimony, police interrogations, and other formal statements made primarily for use in prosecution. Nontestimonial hearsay —such as casual remarks to friends or statements obtained in informal contexts—is not subject to the Crawford bar and is governed by the hearsay rules alone.

Conclusion

The hearsay rule is a complex body of law that balances the need for reliable evidence with the practical difficulties of producing live testimony. The definition of hearsay, the exceptions to the rule, and the constitutional overlay of the Confrontation Clause create a framework that requires careful analysis in every trial. Understanding hearsay is essential for effective advocacy in both civil and criminal litigation.