What are the hearsay exceptions?

Hearsay evidence is typically not allowed in court, whether it’s a criminal trial or a civil trial like a personal injury case.  However, there are several exceptions to the hearsay rule, as well as certain types of evidence that look like hearsay but that are excluded from the rule.

“Hearsay” is any statement made outside the court that is offered in court to prove that the information in the statement is true.  It covers both oral testimony and written exhibits like documents.  The exceptions to the hearsay rule generally fall into three categories: exceptions that apply whether the original maker of the statement (known as the “declarant”) can testify or not; exceptions that only apply if the declarant can’t testify; and exclusions.

Declarant Available

Even if the person who made the out of court statement is available to testify, a hearsay statement can be admitted through the testimony of another person in the following circumstances:

  • Excited utterances.  A statement made under stress is generally admissible even though it is hearsay, if it’s offered by someone who only heard the other person speak.  The statement does not have to be made in “the heat of the moment,” as long as the speaker was still under stress when it occurred.  Statements like “that man stole my purse!” or “you hit me!” or “help, I’m dying!” generally fall under this exception.
  • Present sense impressions.  A statement about what a person is experiencing at the moment he makes the statement is generally admissible even if it’s hearsay.  For instance, suppose that Maria takes the stand to testify that she heard Sue say “I’m so cold!”  This statement could be used in court to prove that, at that moment, Sue felt cold, even though it’s hearsay.
  • Statements made in order to get medical treatment.  Most statements made for medical treatment, like “I can’t feel my legs” or “I’m allergic to penicillin” are admissible, on the theory that most people will tell the truth about their symptoms when their lives or health are at stake.  However, statements to health care professionals that discuss fault or causation, like “that guy hit me and broke my leg” or “I wouldn’t be in so much pain if she had been paying attention to the traffic light” are generally not admissible.
  • Business and public records.  A record made in the “ordinary course of business,” or the lack of a record where one normally would have been made in the ordinary course of business, is generally admissible even if it’s hearsay.  Police reports are generally not admissible in criminal cases to prove a defendant committed a crime, but they may be admissible in personal injury or other torts cases.
  • Prior inconsistent statements.  Some states allow the use of statements a declarant made before trial that conflict with statements the declarant is making while testifying.  Depending on the rules of procedure used in the state, these statements may be admissible generally, or they may only be admissible if made under oath or in writing.
  • Admission of guilt or liability.  Usually made by the plaintiff or defendant in a civil case, these are statements like “the accident was totally my fault!” or “yes, our product is dangerously defective; in fact, we’ve had 22,000 burn complaints this week alone!”  Sometimes, the difference between an admission of guilt or liability and a “statement against interest” (see below) is very fine.
Declarant Unavailable
Some hearsay statements may still be admitted in court, but only if the person who made the original statement cannot testify for some reason.  If that person can testify, he must do so, or the statement cannot be used in court.  These exceptions include:
  • Dying declarations.  Statements made as a person is dying or believes he is dying may be admissible, if the person who made them is unavailable – for instance, if he actually dies.  Many courts will not accept these statements in criminal cases, but may still allow them in civil cases.
  • Declaration against interest.  A statement that could potentially hurt the person who made it is often admissible despite being hearsay, because courts assume that a person would not make such a statement – like “our product is defective” or “I was so busy texting I didn’t even see you in the crosswalk!” – unless it were true.
  • Prior testimony.  If the person who made the statement made it under oath, and the parties had the chance to cross-examine the person at that time, the statement may be admitted even though it’s hearsay.  This rule is often used to introduce deposition testimony at trial.
  • Forfeiture by wrongdoing.  The reason the declarant can’t testify at trial is because the opposing party purposely made the declarant unavailable – say, by intimidation.  If the opposing party’s wrongdoing is discovered, the declarant’s words may be admitted even though they’re hearsay.  This rule is intended to keep wrongdoers from benefiting from coercing, intimidating, or injuring witnesses to keep them from showing up to court.
“Catch-All” Exception
In addition to the specific exceptions listed above, a statement may be hearsay but still be admitted as evidence if it meets the following criteria:
  • It has “sound guarantees of trustworthiness”
  • It is offered to help prove a fact material to the case
  • It is more helpful in proving that material fact than other, non-hearsay evidence
  • Admitting it would “forward the cause of justice”
  • The opposing party or parties are told ahead of time of the plan to admit the hearsay.

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