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Evidence
Part of the common law series
Types of evidence
Testimony · Documentary Physical / Real · Digital Exculpatory · Scientific Demonstrative Eyewitness identification Genetic (DNA) · Lies
Relevance
Burden of proof · Laying a foundation Public policy exclusions Character · Habit · Similar fact
Authentication
Chain of custody Judicial notice · Best evidence rule Self-authenticating document Ancient document
Witnesses
Competence · Privilege Direct examination · Cross-examination  · Redirect Impeachment · Recorded recollection Expert witness · Dead Man's Statute
Hearsay and exceptions
in English law · in United States law Confessions · Business records Excited utterance · Dying declaration Party admission · Ancient document Declaration against interest Present sense impression · Res gestae Learned treatise · Implied assertion
Other common law areas
Contract · Tort · Property Wills, trusts and estates Criminal law
v • d • e

Hearsay is the legal term that describes statements made outside of court or other judicial proceedings. Unless one of about thirty^[1] exceptions applies, hearsay is not allowed as evidence in the United States. The Hearsay Rule is an analytic rule of evidence that defines hearsay and provides for both exceptions and exemptions from that rule. There is no all-encompassing definition of hearsay in the United States. However, most evidentiary codes defining hearsay adopt verbatim the rule as laid out in the Federal Rules of Evidence, which generally defines hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."^[2] Historically, the rule against hearsay is aimed at prohibiting the use of a person's assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court where he may be placed under oath and cross-examined.

[edit] Theory of The Hearsay Rule

The theory of the rule excluding hearsay is that assertions made by human beings are often unreliable; such statements are often insincere, subject to flaws in memory and perception, or infected with errors in narration at the time they are given. The law therefore finds it necessary to subject this form of evidence to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal (judge or jury) to estimate it at no more than its actual value”.^[3]

Three tests are calculated to expose possible weaknesses in a statement:

1. Assertions must be taken under oath
2. Assertions must be made in front of the tribunal (judge or jury)
3. Assertions must be subject to cross-examination.

Assertions not subject to these three tests are (with some exceptions) prohibited insofar as they are offered testimonially (for the truth of what they assert).

[edit] Federal Rules of Evidence

The Federal Rules of Evidence (See Article VIII) provide a general definition of hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Subject to two classes of "exemptions," this definition classifies a statement as hearsay if the statement meets two requirements: (1) the statement must be extra-judicial (i.e. not made by this witness in this proceeding). (2) The statement must be offered to prove the truth of what the statement asserts if anything.

However, as noted below, the Federal Rules of Evidence also provide two specific categories of exemptions of certain kinds of statements from this rule; statements in these categories are defined as "Non-hearsay."

Typically, one can classify a statement as hearsay under the Federal Rules of Evidence using a three-step analysis. A statement will be considered hearsay if it is:

1. An assertive statement
2. Made by an out-of-court declarant
3. Is being offered to prove the truth of the matter asserted therein.

An "assertive statement" is generally defined as the intentional communication of fact. Under the Federal Rules of Evidence, an assertive statement can be oral, written, or non-verbal conduct if it was intended to be an assertion. However, any verbal or non-verbal conduct that was not intended to communicate a fact will not be considered an assertive statement.

In order for the statement to satisfy the "out-of-court declarant" element of hearsay, very simply stated, the statement must have been made outside of the courtroom that the present proceeding is taking place in -- meaning that if the statement was made in another courtroom, it is still made by an "out-of-court" declarant.

Lastly, if a statement is being offered for its truth -- meaning that its relevance depends upon the jury believing the substance of the statement -- then it is being offered to prove the truth of the matter asserted therein. If a statement is relevant for any other purpose other than proving the truth of the matter asserted therein, then the statement will not be considered hearsay under the Federal Rules of Evidence.

[edit] Application

Generally in common law courts the "hearsay rule" applies, which says that a trier of fact (judge or jury) cannot be informed of a hearsay statement unless it meets certain strict requirements. However, the rules for admissibility are more relaxed in court systems based on the civil law system. In the civil law system, the courts, whether consisting only of judges or featuring a jury, have wide latitude to appreciate the evidence brought before them.

[Note: Louisiana, a civil-law jurisdiction, does not share the above referenced feature generally found in civil-law jurisdictions. With few exceptions, Louisiana follows rules predicated upon the Federal Rules of Evidence.]

Furthermore, even in common-law systems, the hearsay rule only applies to actual trials. Hearsay is admissible as evidence in many other judicial proceedings, such as grand jury deliberations, probation hearings, parole revocation hearings, and proceedings before administrative bodies.

In criminal law, Crawford v. Washington, 541 U.S. 36 (2004), reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment to the Constitution. Crawford gives enhanced protection to defendants when the hearsay offered against them is testimonial in nature. When a statement is deliberately accusatory, or when the declarant knows that the statement is likely to be used in the prosecution of the defendant for a crime, the need for face-to-face confrontation is at its highest. When statements are directly accusatory, the defense needs an opportunity to explore the accuser’s motives. Where statements are the product of police interrogation, there is a need to ensure that the testimony is not the product of improper coercion or intimidation.

Ohio v. Roberts, 448 U.S. 56 (1980), set forth a two-pronged test in order for hearsay to be admissible against a criminal defendant: (1) the declarant generally must be shown to be unavailable; and (2) the statement must have been made under circumstances providing sufficient “indicia of reliability.” With respect to the second prong, a reliability determination may assume that hearsay is sufficiently reliable for constitutional purposes if it satisfies a “firmly rooted” hearsay exception. In practice this means that lower courts need to make reliability determinations only for hearsay that is offered under a “catchall” exception, such as Federal Rule of Evidence Rule 807, or under new or non-traditional hearsay exceptions that are not “firmly rooted.”However, Crawford v. Washington overruled Ohio v. Roberts.

[edit] Common misconceptions

One major misconception about the hearsay rule is that hearsay is never admissible in court. While the general rule is that such evidence is inadmissible, there are many exceptions.

There are two other common misconceptions concerning the hearsay rule. The first is that hearsay applies only to oral statements. The hearsay rule applies to all out-of-court statements whether oral, written or otherwise. The Federal Rules of Evidence defines a statement as an oral or written assertion or nonverbal conduct of a person, if the conduct is intended by the person as an assertion. Even written documents made under oath, such as affidavits or notarized statements, are subject to the 'hearsay rule'.

The second common misconception is that all out-of-court statements are hearsay. This is not the case. An out of court statement may or may not be hearsay depending on the purpose for which it is offered. If the statement is being offered to prove the truth of what it asserts, then it becomes hearsay. When offered for any other purpose the statement is not hearsay. For example: Witness testifies that yesterday he spoke to Jim (who was in Vermont) on the phone and that Jim made the following statement, "It's raining in Vermont!" If the attorney is seeking to use this statement to prove that it was in fact raining in Vermont, then it is hearsay. But, if the attorney is seeking to use the statement to prove that the phone lines were working that day, or that Jim had not lost the power of speech, or for any other purpose, then the statement is not being offered to prove the truth of the matter asserted, and therefore it is not hearsay.

Consider an additional example:

Officer Friday, a police officer, hears cries of "Help, Slayer is trying to kill me!" from inside a house. Believing that there is a crime in progress, the officer kicks the front door down and enters the home to discover the homeowner, Slayer, assaulting a victim, Monica, who is crying and visibly shaking. Slayer is charged with attempted murder. Two separate trials might result from these circumstances.

1. First, a criminal trial against Slayer, who proclaims his innocence and demands a trial for the criminal charges alleged.
2. Second, a civil trial in which Slayer sues Officer Friday for invading his home, wherein Officer Friday will assert that there was just cause to enter the home because he had a genuine belief that a crime was occurring.

In the first trial, the issue is whether Slayer attempted to kill Monica. Officer Friday is asked to testify to what he heard Monica scream from inside the house, i.e., "Help, Slayer is trying to kill me!" This statement would be hearsay. Officer Friday is being asked to testify to what Monica said to prove that Slayer attempted to murder Monica. Unless the attorney can show that this statement falls within an exception to the hearsay rule, the factfinder (the judge or jury) will never be allowed to consider Monica's statement (this particular statement, however, would likely be admissible because of "Excited Utterance" and "Present sense impression" exceptions).

In the second trial, however, the issue is not whether Slayer tried to kill Monica, but rather whether Officer Friday's entry into the home was lawful. Here, the statement is not being offered to prove that Slayer tried to kill Monica, but instead is being offered to prove that Officer Friday had probable cause to enter the home. Whether Slayer was trying to kill Monica is unimportant. What matters is whether Officer Friday believed that Monica was in danger. Monica's statement is evidence to that effect because a reasonable person having heard Monica's cries for help would fear for her safety.

A person's own prior statements can be hearsay. For example, suppose a person is testifying on the stand. In relation to an automobile accident where a blue truck struck a yellow car, the witness testifies, "I told the police officer the truck was blue." This statement is an out-of-court statement offered for the purpose of proving the truth of the matter asserted, and is therefore hearsay. The witness is testifying about what someone said in the past. The fact that it is his own statement does not change the hearsay nature of the statement.

If the witness testifies, "The truck that struck the yellow car was blue," the statement is not hearsay. The witness is not testifying about a past statement. He is not relating in court what someone outside of court said, but is merely relating an observation.

The rule that a person's own statements can be considered hearsay may be confusing. By "forgetting" who is testifying on the stand and merely looking for statements like "I said", "I wrote", "I testified before that", "The document says", and the like, most confusion can be eliminated.

In this example, simple logic tells that there is a difference: while the first statement may be true, it does not assert anything about the truth of the matter stated. The witness may have told the officer that the truck was blue; this, however, need not have been the truth - he might have been mistaken or deliberately lying.

[edit] Non-Hearsay under the Federal Rules

Under the Federal Rules of Evidence, two broad categories of statements are exempt from the rule's general definition. These are referred to as hearsay “exemptions” and are of two types:

[edit] Admission by party-opponent

An admission by a party-opponent is a statement offered against another party that meets one of five criteria:

1. The party against whom the statement is being offered is also the declarant of that statement either personally or in a representative capacity.
2. The party against whom the statement is being offered manifested an adoption or belief in the statement's truth.
3. The party against whom the statement is being offered authorized the declarant to make the statement.
4. The statement is made by an agent of the party against whom it is being offered and concerns a matter within the scope of the employment and is made during the course of that employment.
5. The declarant was a co-conspirator of the party against whom the statement is being offered and the statement is in furtherance of their conspiracy.

The theory underlying this “exemption” is derived from the nature of the hearsay rule itself. The hearsay rule operates to exclude extra-judicial assertions as untrustworthy because they cannot be tested by cross-examination. When an assertion is offered into evidence against the defendant and the defendant objects, “hearsay,” the defendant is in essence saying “I object to this statement as untrustworthy because I am not afforded an opportunity to cross-examine the person who made it. How can we trust what he said?” But what if the defendant is the person who made the statement that is now being offered against him? To object, “hearsay” in this circumstance would be as absurd as to argue, “This statement is unreliable because I cannot cross-examine myself; therefore, how can I trust what I said?” In this situation the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz. the need and prudence of affording an opportunity of cross-examination. Another way of looking at it is that a defendant who faces his own statement being used against him has an opportunity to cross-examine himself – he can take the witness stand and explain his prior assertion, so the rule is satisfied.

[edit] Prior statement by a witness

A prior statement is not hearsay if the person who made the statement (the "declarant") testifies at the trial or hearing subject to cross-examination, and (A) the prior statement is inconsistent with the declarant's testimony at the trial, etc., and the prior statement was given under oath at a trial, hearing, deposition, or other proceeding, or (B) the prior statement is consistent with the declarant's testimony, and is offered to rebut a charge that the declarant has made a recent fabrication, or a charge of the declarant's improper influence or motive, or (C) the prior statement was an identification of a person made after perceiving that person.

[edit] Hearsay exceptions

Some statements are defined as hearsay, but may nevertheless be admissible as evidence in court. These statements relate to exceptions to the general rule on hearsay. Some (but not all) exceptions to the hearsay rule apply only when the declarant is unavailable for testimony at the trial or hearing.

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

[edit] 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 declarant's 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 is at issue. Present-state-of-mind statements are also used as circumstantial evidence of subsequent acts committed by the declarant, like his 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 an individual will generally NOT be admissible under this exception, unless it involves a small child. (The Tender Years Doctrine).

• 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.

Because the Federal Rules of Evidence do not apply in the military tribunals in the United States Naval Base at Guantanamo Bay, the hearsay rule also does not apply. How, if at all, this affects prisoner's Confrontation Clause rights, if any, is an interesting question.

• 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.

[edit] 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 attacked you?" and the victim replies, "The butler did it." However, case law has ruled out this exception in criminal law, because the witness should always be cross examined in court; however, there is an exception to this exception for criminal cases: even though generally inadmissible to matters relating to criminal law, the exception has been carved out for actions relating to homicide cases[Fed. R. Evid. 804(b)(2)].
• declarations against interest: A statement that would incriminate or expose the declarant to liability to such an extent that it can be assumed he would only make such a statement if it were true. It would be assumed that one would lie to further one's interests, so a statement against his interests (such as exposing oneself to criminal or civil liability) likely would not be made unless it were true.

• 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.

• admission of guilt: if you make a statement, verbal or otherwise, as an admission of guilt of the matter at hand, that statement would not be regarded as hearsay. In other words, self-incriminating statements (confessions) are not hearsay.^[4]

• forfeiture by wrongdoing: the party against whom the statement is now offered (1) intentionally made the declarant unavailable; (2) with intent to prevent declarant's testimony; (3) by wrongdoing. In plain English, if you get rid of a witness, statements they made can be used against you.

[edit] 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.

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.

This, of course, is not always true. Patients do sometimes lie to their doctors (to get painkillers to which they are not entitled, for example). Hearsay exceptions do not mandate that a trier of fact (the jury or, in non-jury trials, the judge) accept the hearsay statement as being true. Hearsay exceptions mean only that the trier of fact will be informed of the hearsay statement and will be allowed to consider it when deciding on a verdict in the case. The jury is free to disregard a hearsay statement if the jury does not believe it. The hearsay rule controls only 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.

[edit] References

1. ^ ""Hearsay" Evidence". Findlaw for the Public. http://criminal.findlaw.com/crimes/more-criminal-topics/evidence-witnesses/hearsay-evidence.html. Retrieved 2008-01-31. 
2. ^ Rule 801, 28 U.S.C. App. See Rule for Courts-Martial 801, Manual for Court Martial, United States (2005 ed.)
3. ^ Wigmore on Evidence §1360
4. ^ FRE 804(b)(3)

[edit] External links

• Federal Rules of Evidence, section VIII
• Article discussing the nature of nontestimonial hearsay