Understanding the Hearsay Rule

What Is the Hearsay Rule? What Is Its Purpose? Are There Exceptions to the Hearsay Rule?

If you’ve watched any courtroom drama, you’ve likely heard one of the attorneys voice an objection during direct or cross examination, alleging that the statements made are “hearsay.” What does that mean? How is hearsay defined? Why is there a rule prohibiting the use of hearsay evidence? Are there exceptions where a jury is allowed to consider evidence despite the fact that it’s hearsay?

Why Are There Rules Regarding the Admissibility of Evidence?

Before considering the specific applications of the hearsay rule, it’s important to understand why there are rules allowing certain types of evidence and banning other types. After all, the American legal system is based on the concept of “open discovery,” which means that both parties have an equal right to access all the evidence related to the case. But here’s the thing to understand—while a party may have a right to access and review all evidence related to a legal proceeding, there are limits on what evidence may be considered by the jury (or judge, if there is no jury) in reaching decisions about the case.

The primary objective of both state and federal rules of evidence is to increase the likelihood that a verdict will be based on facts rather than emotion, opinion, or insinuation. The rules of evidence also seek to ensure that all evidence considered by the jury or judge is truthful, accurate, and valid.

What Is the Hearsay Rule?

Though the precise language varies from state to state, and between state and federal rules of evidence, the hearsay rule essentially prevents the use of “an out-of-court statement to prove the truth of what is being said.” For example, if a witness is brought to the stand to provide evidence that the defendant stole a car, the witness would not be allowed to testify that they heard a bystander say that the defendant stole the car. The bystander’s remarks are an “out-of-court statement” because the bystander is not testifying in court; therefore, the statement is hearsay.

The hearsay rule applies to more than verbal statements. Hearsay can be contained in a note, other document, or even a nod of the head.

What Is the Purpose of the Hearsay Rule?

The fundamental issue with hearsay evidence is that the person who made the statement isn’t present, so neither the parties nor the court can take steps to establish the credibility of the statement. The bystander who made the statement about the auto theft can’t be questioned to determine if he was an eyewitness or if he made an assumption based on circumstantial evidence.

What Are the Exceptions to the Hearsay Rule?

As the laws regarding hearsay have evolved, certain exceptions have emerged, based on the perception that the statements were made under circumstances that would reasonably reduce or eliminate the possibility or likelihood of inaccuracy or falsification. The following are the exceptions most commonly found in state evidence rules:

• Statements made as an “excited utterance”—Found more often in criminal cases, these types of statements are typically made in the immediate aftermath of some type of surprising or shocking event, or in the heat of the moment, where the person making the statement likely did not have time to consider the evidence and engage in fabrication.
• Statements against one’s own interest—This exception allows actions or statements that are potentially damaging or harmful to the person making the statement. The exception assumes that a witness would not intentionally or voluntarily engage in self-incrimination or otherwise say something against their own interests.
• Statements that are a matter of record—The out-of-court statement of a witness may be admissible if it is found in an official government record, a prior court decision, a private business record, or the prior sworn testimony of a witness who is unavailable to appear at trial.

The Federal Rules of Evidence include a number of additional exceptions. Under those exceptions, the following types of hearsay can be admitted:

• A statement of a present sense impression
• A statement about a then-existing physical, mental, or emotional condition
• A statement made for purposes of medical diagnosis or treatment
• A recorded recollection of a prior event or statement
• Records (or the absence of records) of a regularly conducted activity
• Records of religious organizations related to family or personal history
• Certificates of baptism, marriage, or similar ceremonies
• Family records
• Records of documents related to or affecting an interest in real property
• Judgments of a previous conviction