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 determi-
nation: (1) Before being allowed to testify, a wit-
ness generally must swear or affirm that his or
her testimony will be truthful. (2) The witness
must be personally present at the trial or pro-
ceeding 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 state-
ment). Out-of-court statements hinder the abil-
ity 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 ges-
tures. 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 Rail-
road, 329 Mass. 14, 105 N.E.2d 923 [1952]).
Not all out-of-court statements or asser-
tions are impermissible hearsay. If an attorney
wishes the judge or jury to consider the fact that
a certain statement was made, but not the truth-
fulness of that statement, the statement is not
hearsay and may be admitted as evidence. Sup-
pose 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 mem-
ory regarding the subject matter, or is too
physically or mentally ill to testify. These defi-
nitions 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 out-
lined 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 condi-
tion made while the declarant was perceiv-
ing 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.”
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 admissi-
ble hearsay (Fed. R. Evid. 803(2)). For exam-
ple, “The robber is pointing a gun at the
cop!” is admissible.
3. Then Existing Mental, Emotional, or Phys-
ical Condition. A statement of the declar-
ant’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 Diagno-
sis or Treatment. A statement describing
medical history, or past or present symp-
toms, 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 wit-
ness to testify fully and accurately” is admis-
sible (Fed. R. Evid. 803(5)). The record must
have been made when the matter was fresh
