Learning Objectives

  1. Define the term hearsay, and discuss the reason for excluding hearsay evidence from trial.
     
  2. List out and summarize the U.S. Supreme Court cases that analyze the relationship between the Sixth Amendment Confrontation Clause and the hearsay rule.
     
  3. Explain the relationship between admissions, adoptive admissions, admission by an agent, and admission by a co-conspirator.
     
  4. Describe the difference between admissions and statements against interest.
     
  5. Differentiate between a present sense impression and an excited utterance.
     
  6. Explain the difference between then-existing mental, emotional, or physical conditions, and a statement made for medical treatment.
     
  7. List the requirements for the business records exception that must be met. Explain when the absence of a business record is admissible in evidence.
     
  8. Explain the reason for a hearsay exception in public records.
     
  9. Discuss why there is a hearsay exception when a party wrongfully causes the absence of a witness.
     
  10. Explain the reason for a residual exception.

 

SUMMARY: The general rule is that hearsay, which occurs when one person testifies in court about what another person stated outside of court, is inadmissible in court. Federal Rule 802 provides that “[h]earsay is not admissible except as provided by these [federal] rules or by other rules prescribed by the Supreme Court . . . or by act of Congress.” Federal Rule 801(c) provides that “‘Hearsay’ means a statement that:

  1. the declarant does not make while testifying at the current trial or hearing; and
  2. a party offers in evidence to prove the truth of the matter asserted in the statement.”

There are three components to the legal definition of hearsay:

  1. A statement.
  2. A declarant.
  3. Offered in evidence to prove the truth of the matter asserted.

Hearsay statements are subject to the requirements of the U.S. Constitution. the most important limitation is the Confrontation Clause of the Sixth Amendment. The Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This clause extends to both federal and state prosecution. The Confrontation Clause permits the introduction of testimonial statements in those instances in which the declarant is unavailable and when, at an earlier time, he or she was subject to cross-examination by the accused. The Supreme Court also has recognized in addition to well-recognized hearsay exceptions that statements that are nontestimonial may be introduced at trial when the statements are made in response to an ongoing emergency and were not obtained for the purposes of gathering evidence for trial.

The Federal Rules list the hearsay exceptions in three separate rules. Rule 803 lists twenty-three exceptions that may be used whether or not the declarant is available to testify. Rule 804 lists six exceptions that may not be used unless the lawyer demonstrates to the judge that the declarant is unavailable as a witness. Rule 807 is a so-called residual or catch-all exception that provides for the recognition of other exceptions that are not specifically listed when there are “equivalent circumstantial guarantees of trustworthiness” to the exceptions recognized in the federal rules.

Two other exceptions to hearsay, out-of-court statements made by the defendant and prior inconsistent and prior consistent statements, are recognized by as many as ten states but are not included as an exception to hearsay under the Federal Rules of Evidence. Commentators often refer to these statements as exemptions from the hearsay rule because under the federal rule they are exempt from the rule on hearsay evidence.