Lesson 6.3: Hearsay and Exceptions

Introduction

In this lesson, we will explore the concept of hearsay as defined by the Federal Rules of Evidence (FRE), along with its various categories, exclusions, exceptions, and the implications of the Confrontation Clause for criminal cases. By the end of this lesson, you, students, will be able to define hearsay, distinguish non-hearsay uses, identify major hearsay exceptions, and apply the relevant evidentiary rules with confidence.

Learning Objectives

By the end of this lesson, you should be able to:

• Understand the definition of hearsay and non-hearsay categories.
• Identify the exclusions and exceptions to hearsay, especially those requiring unavailability.
• Explain how the Confrontation Clause limits hearsay in criminal cases.
• Recognize hearsay and distinguish it from non-hearsay uses.
• Apply the major hearsay exceptions and exclusions.

What is Hearsay?

Hearsay is an out-of-court statement that is offered for the truth of the matter asserted in that statement. According to Rule 801(c) of the FRE:

• Statement: an oral or written assertion or nonverbal conduct intended as an assertion.
• Declarant: the person making the statement.
• Offered for the Truth: Means that the party is trying to prove that the statement is true.

For example, if a witness testifies that “John said he saw the accident,” this is hearsay if it is offered to prove that John actually saw the accident. In this case, John is the declarant, and the statement is being used for the truth of what it asserts, which is that John saw the accident.

Non-Hearsay Uses of Statements

Not all out-of-court statements are considered hearsay. Certain uses of statements do not fall under the definition of hearsay, particularly when they are not offered to prove the truth of the matter asserted. Here are some examples:

1. Verbal Acts: Statements that have legal significance on their own, such as contract offers or defamatory remarks.
2. Effect on Listener: Statements offered to show the effect they had on the listener rather than to prove the truth of those statements.
3. Prior Inconsistent Statements: Statements that are being used to challenge a witness's credibility rather than prove the truth of the matter.

For instance, if a witness testifies, “When I spoke to John, he appeared upset,” this does not qualify as hearsay because the statement is not being used to prove whether John was actually upset, but rather to explain how the witness perceived the situation.

Hearsay Exceptions

There are a number of exceptions to the hearsay rule, which allow certain out-of-court statements to be admitted as evidence. Let's explore some of the most significant exceptions:

1. Excited Utterance

Under Rule 803(2), an excited utterance is a statement made about a startling event while the declarant is under the stress of excitement caused by the event. The key to this exception is that it reflects the declarant's immediate reactions.

Example: If a witness sprints from the scene of an accident and exclaims, “That car ran the red light!” moments after witnessing the event, this statement may qualify as an excited utterance.

2. Present Sense Impression

According to Rule 803(1), a present sense impression is a description of an event made while the event is occurring or immediately thereafter. This exception allows for the admission of statements that are spontaneous and made in real-time.

Example: If someone immediately states, “It’s raining heavily right now,” while observing the weather, this statement might be admitted under the present sense impression exception.

3. Statements for Medical Diagnosis or Treatment

Rule 803(4) allows statements made for purposes of medical diagnosis or treatment to be admitted into evidence. The rationale behind this is that individuals are likely to provide accurate information regarding their condition when seeking treatment.

Example: If a patient says, “I fell from a ladder and hurt my ankle,” to a doctor, this statement can be used in court regarding the nature of the injury.

4. Business Records

Under Rule 803(6), records made in the regular course of business can be admitted as exceptions to hearsay. The records must be made at or near the time by someone with knowledge, kept in the course of a regularly conducted activity, and shown to be reliable.

Example: A logbook maintained by a delivery service that records the deliveries made each day can be submitted as evidence if it meets the requirements of the rule.

Unavailability and Hearsay Exceptions

Some exceptions to the hearsay rule require that the declarant be unavailable. The FRE outlines four grounds for declaring a witness unavailable:

1. Privilege: If the witness claims a privilege that prevents them from testifying.
2. Incapacity: If the witness is dead or cannot be present due to health issues.
3. Absence: If the witness is absent from the trial and cannot be found.
4. Refusal: If the witness refuses to testify despite a court order.

1. Former Testimony

Under Rule 804(b)(1), former testimony is when a witness’s prior testimony is admissible if the declarant is unavailable, and the party against whom it is being offered had the opportunity to cross-examine the declarant in the previous proceeding.

Example: If a witness testified in a previous trial about an incident and is now unavailable, that testimony may be used in the current trial, provided the opposing party had the opportunity to question the witness previously.

2. Dying Declarations

Rule 804(b)(2) permits the admission of statements made by a declarant who believes they are about to die. This exception applies primarily in civil cases and homicide prosecutions.

Example: A person on their deathbed might say, “I saw Sarah shoot me,” and this could be offered as evidence in a trial about the incident.

3. Statement Against Interest

Under Rule 804(b)(3), a statement that is against the declarant's interest when made is admissible, provided that a reasonable person would not have made the statement if it were not true.

Example: If a declarant admits to committing a crime during a conversation, this statement could be admissible against them in court.

The Confrontation Clause and Hearsay

The Confrontation Clause of the Sixth Amendment provides defendants the right to confront their accusers in criminal cases. This clause plays a critical role in hearsay analyses, particularly in cases where a hearsay statement is being presented against a defendant.

In the landmark case Crawford v. Washington, the Supreme Court held that testimonial hearsay statements cannot be admitted unless the declarant is available for cross-examination, even if the statement falls under a hearsay exception. The Court clarified that statements made in formal situations (such as police interrogations) are considered “testimonial.” Hence, if the declarant is not available for cross-examination, such statements may be inadmissible, regardless of their hearsay status.

Practice Questions on Hearsay

1. A witness testifies, “I heard Jane say that she saw the robbery.” Is this statement hearsay?
2. Can you identify an example of a present sense impression?
3. If a business record shows that a delivery was made at 3 PM on Friday, can it be used in court? Why or why not?
4. Describe a situation in which a dying declaration might be admissible.

Conclusion

In this lesson, we discussed the definition of hearsay and the distinction between hearsay and non-hearsay statements. We explored various exceptions to the hearsay rule, emphasizing rules that require unavailability. Additionally, we examined the impact of the Confrontation Clause on the admissibility of hearsay statements in criminal cases. Understanding these concepts is crucial for your success on the NextGen Bar Exam and in practicing law, where applying evidentiary rules accurately can significantly impact case outcomes.

Study Notes

• Hearsay: Out-of-court statements offered for the truth of the matter.
• Non-hearsay: Statements offered for effect, rights, or credibility.
• Excited Utterance: A spontaneous statement made under stress.
• Present Sense Impression: Description made during or immediately after an event.
• Exceptions requiring unavailability: Former testimony, dying declarations, statement against interest.
• Confrontation Clause: Right to confront accusers limits hearsay in criminal cases.