Lesson 7.5: Hearsay and Its Exceptions

Introduction

In legal proceedings, the ability to present and examine evidence is paramount. One significant concept within the realm of evidence is hearsay. Understanding hearsay and its exceptions is crucial for any law student preparing for the Uniform Bar Examination (UBE). In this lesson, we will delve into the definition of hearsay, explore non-hearsay prior statements, and evaluate party-opponent statements. We will also identify principal exceptions to the hearsay rule and discuss the confrontation right.

Learning Objectives

Define hearsay, non-hearsay prior statements, and party-opponent statements.
Identify the principal exceptions to the hearsay rule and the implications of the confrontation right.
Distinguish between hearsay and non-hearsay statements.
Match out-of-court statements to their correct exceptions or determine their inadmissibility.
Explain the key concepts and terminology related to hearsay and its exceptions.

What is Hearsay?

At its core, hearsay refers to an out-of-court statement that is offered to prove the truth of the matter asserted in that statement. According to the Federal Rules of Evidence (FRE), a statement is considered hearsay if:

It is an assertion made outside of the court.
It is being presented to support the truth of the assertion.

For example, if a witness testifies, "John told me that he saw the defendant at the scene of the crime," this statement is hearsay because the assertion that the defendant was at the scene relies on John's out-of-court statement.

Key Components

Statement: This can be oral or written and does not need to be formal.
Out-of-Court: The statement was not made during the current court proceedings.
Offered to Prove Truth: Hearsay is specifically the use of an out-of-court statement to establish the truth of the matter asserted.

Example of Hearsay

Consider the following scenario:

A witness, Mary, states: "I heard Jane say that she saw Tom steal a car."

In this situation, Mary is trying to show that Tom did, in fact, steal a car, based on Jane’s statement. If offered for that purpose, this statement is hearsay.

Non-Hearsay Prior Statements

While hearsay is generally inadmissible, certain out-of-court statements may be categorized as non-hearsay. The following two situations exemplify non-hearsay prior statements:

Prior Statements by the Witness: Under FRE 801(d)(1), a declarant's prior statement may not be considered hearsay if the declarant testifies and is subject to cross-examination about the statement, and the statement:

Is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding.
Is consistent with the declarant's testimony to rehabilitate the declarant's credibility.
Identifies a person as someone the declarant perceived earlier.

Party-Opponent Statements: These are statements made by a party, and thus, they cannot be classified as hearsay against that party. Per FRE 801(d)(2), a statement is non-hearsay if it is:

Made by the party in an individual or representative capacity.
Adopted by the party (through silence or affirming another’s statement).
Made by a person authorized by the party to make a statement on the subject.
Made by the party's agent or employee during the course of an agency or employment relationship.
Made by a co-conspirator during the course and in furtherance of a conspiracy.

Example of Non-Hearsay

A witness testifies: "I heard Tom say, 'I was at the bar when the crime occurred.'"

This statement can be admitted as a party-opponent statement if Tom is a defendant in a case regarding the crime, as it is his own statement. Therefore, this doesn’t fall under hearsay.

Exceptions to the Hearsay Rule

The Federal Rules of Evidence recognize various exceptions to the hearsay rule, which permit certain statements to be admissible even if they are technically hearsay. The most significant exceptions include:

1. Excited Utterance

FRE 803(2) allows statements relating to a startling event or condition made while the declarant was under the stress of excitement that it caused. The rationale is that the stress limits the opportunity for reflection and fabrication.

Example of Excited Utterance

If a person witnesses a car accident and blurts out, "That car ran a red light!" shortly after the event, that statement could be admitted as an excited utterance.

2. Present Sense Impression

FRE 803(1) permits the admission of statements describing or explaining an event or condition observed during or immediately after the event occurred. The idea is that statements made in a moment of observation reflect spontaneity with less chance for manipulation.

Example of Present Sense Impression

A person stating, "I see a fire in the building right now," while actually observing the building is classified as a present sense impression.

3. Business Records

FRE 803(6) provides an exception for records made in the regular course of business that meet certain criteria, including:

The record was made at or near the time of the event by someone with knowledge.
The record was kept as part of the regular business practice.
The record was made by a reliable source.

Example of Business Records

A hospital’s medical chart entry regarding a patient's treatment is generally admissible as a business record, provided it meets the criteria mentioned above.

4. Reported Recollections

Under FRE 803(5), a record can be used if it:

Is on a matter that the witness once knew about but cannot recall well enough to testify fully and accurately.
Was made when the matter was fresh in the witness's memory.
Accurately reflects the witness's knowledge.

Example of Reported Recollections

If a witness has extensive notes related to a meeting they cannot recall, their notes can be introduced into evidence as long as they can affirm that the notes accurately reflect what occurred.

The Right to Confrontation

The Sixth Amendment of the U.S. Constitution grants defendants the right to confront witnesses against them in criminal prosecutions. This right has implications for hearsay. If a statement is to be admitted under any exception to hearsay, the defendant’s confrontation rights must still be protected.

Implications of the Confrontation Right

This means that if hearsay is admitted in a criminal case, the court must consider whether allowing the hearsay statement infringes on the defendant's right to confront their accuser. In most cases, the testimony of a witness must be available for cross-examination unless it falls under a recognized exception that does not violate due process.

Example of Confrontation Right

If a hearsay statement is made in a police report about what a witness saw, the defendant may argue that without having the witness physically present to confront and cross-examine, he or she is being denied their rights.

Conclusion

Understanding hearsay and its exceptions is crucial for successfully navigating the rules of evidence in both the Multistate Bar Examination (MBE) and the Multistate Essay Exam (MEE). In this lesson, we explored the definition and fundamental principles of hearsay, non-hearsay prior statements, and several key exceptions to the hearsay rule. Remember to always consider the context and purpose of statements when determining their admissibility. Mastery of these concepts will empower you in your future legal endeavors.

Study Notes

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
Non-hearsay includes individual statements made by a party or prior statements by a witness under specific conditions.
Key exceptions to hearsay include excited utterance, present sense impression, business records, and reported recollections.
The confrontation right protects defendants' ability to confront witnesses in criminal proceedings, impacting hearsay admissibility.
Always analyze statements within context to determine their admissibility under the hearsay rule and its exceptions.