What are the hearsay exclusions?

Hearsay statements are generally not allowed as evidence in most U.S. courts.  However, the hearsay rule has many exceptions.  In addition to the exceptions, most courts’ rules of evidence also list certain types of evidence that are “excluded” from the hearsay rules.  Unlike exceptions, which cover “things that are hearsay but we’ll let them in anyway,” the exclusions cover “things that are not considered hearsay, even though they look an awful lot like hearsay at first glance.”

Admissions by Party-Opponents

If the plaintiff in a case makes a statement out of court, the defendant may use that statement in court – or vice versa – as long as the statement meets at least one of the following criteria:

  • The party the statement is being used against is the one who made the statement, or the statement was made by someone whom the party authorized to make it on her behalf, like an employee or agent.
  • The party the statement is being used against indicated that she believed the statement’s contents were true.
  • The person that made the statement was an employee of the party the statement is being used against and was made within the scope of the employment.  (For instance, if an injured plaintiff called the manufacturer of a product that injured her and was told, “Yeah, the safety guards on our circular saws are only held on by chewing gum.”)
  • The person that made the statement was a co-conspirator of the person the statement is being used against, and the statement was made in order to further a conspiracy.
Statements made by a party opponent are excluded from the hearsay rule because the rule’s purpose is to prevent untrustworthy statements, whose makers cannot be cross-examined, from coming into court.  When a party or his attorney stands up in court and says, “Objection, hearsay!”, what he is saying is, “Wait!  We can’t cross-examine the person who made this statement, so how can we find out if it’s trustworthy?”
When a statement made by an opponent is used, however, the person who would normally say, “Objection, hearsay!” is the same person who made the statement.  In other words, objecting to these statements as hearsay is the same thing as saying, “Wait!  I can’t cross-examine myself, so how can I find out if I’m trustworthy?”  The reason for the hearsay rule collapses, and admissions by party-opponents can be introduced in court.
Prior Statements By Witnesses
A statement made by any witness before the trial may be admitted at the trial if it was made under oath at a deposition or former trial, hearing, or other proceeding, and it meets any of the following conditions:
  • It contradicts what the witness is saying now.
  • It matches what the witness is saying now, and it is offered to rebut the argument that the witness is unreliable or contradicted herself.
  • It is an identification of a person made as the witness was seeing that person.  (For instance, “The defendant is the person sitting at the table directly in front of the judge, wearing a SpongeBob T-shirt” is admissible if it is part of a witness’s testimony from a previous deposition, trial, or hearing – the witness is describing the person as she looks at him.)
The first and second prior-testimony exclusions are based on the same basic principle as the exclusion for statements made by opponents.  Suppose, for example, that the plaintiff in a personal injury case takes the stand and testifies that she had to have four surgeries after the accident.  The defendant’s attorney says, “but in your deposition, didn’t you say you only had a few bruises?”
Since this statement sounds like hearsay, the plaintiff’s attorney might be tempted to object.  However, the objection on the grounds of hearsay is basically saying, “Wait!  We can’t cross-examine the person on the stand right at this moment, so how can we know what she said is trustworthy?”  Obviously, we can cross-examine the person on the stand, so the objection makes no sense.
The third exclusion – the identification of someone whom the witness was looking at when she identified him – is related to the present-sense exception to the hearsay rule.  It is also, in another sense, not hearsay at all.  Hearsay statements are statements made outside of court to prove the truth of the information contained in them.  When testimony about a prior identification is admitted, it is not trying to prove, for example, that the defendant is the person in the SpongeBob T-shirt now; it is trying to prove that the defendant was the person in the SpongeBob T-shirt then.  (Presumably, the defendant is still the same person, even if he has changed his shirt.)

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