From Academic Kids

Hearsay in its most general and oldest meaning is a term used in the law of evidence to describe an out of court statement offered to establish the facts asserted in that statement. Hearsay is generally not admissible in common law courts because it is of suspect value, but there are many exceptions to this prohibition.



Generally in common law courts the "hearsay rule" applies, which says that a trier of fact (juror or judge) cannot be informed of a hearsay statement unless it meets certain strict requirements. However, the rules for admissibility are more relaxed in court systems based on the civil law system. In the civil law system, the courts, whether consisting only of judges or featuring a jury, have wide latitude to appreciate the evidence brought before them.

Furthermore, even in common law systems, the hearsay rule only applies to actual trials. Hearsay is admissible as evidence in many other judicial proceedings, such as grand jury deliberations, probation hearings, parole revocation hearings, and proceedings before administrative bodies.

Common misconceptions

There are two common misconceptions concerning the hearsay rule. The first is that it is commonly thought of within the context of "who said what to whom,", i.e., repeating what somebody else said. However, it also applies to written documents and electronic records. Even written documents made under oath, such as an affidavit or notarized statement, are subject to the 'hearsay rule'.

The second misconception is that hearsay is often thought of as a situation where the person testifying at trial repeats what somebody else said or wrote. This is only partially correct. What makes a statement hearsay is not the statement itself, but the fact that it is being offered as evidence of the statement being true. If the purpose for which the out of court statement is being offered does not depend on the statement being true, then it is not hearsay.

Consider the following example:

Joey, a police officer hears cries of "Help, he's going to kill me! Help!" from inside a house. Believing that there is a crime in progress,the officer kicks the front door down and enters the home to discover the homeowner, Ross, assaulting a victim, Monica, who is is crying and visibly shaking. Ross is charged with attempted murder. Three separate trials might result from these circumstances.
  1. First, a criminal trial against Ross, who proclaims his innocence and demands a trial for the criminal charges alleged.
  2. Second, a civil trial in which Monica sues Ross for assault.
  3. Third, a civil trial in which Ross sues Joey for invading his home, wherein Joey will assert that he had a good reason to enter the home because he had a genuine belief that a crime was occurring.

In the first trial, where the issue is whether an attempted murder in fact occurred, Joey is asked to repeat the victim's cries for help. The statements would be hearsay. Joey is being asked to repeat Monica's statements to prove an attempted murder in fact occurred. That assertion depends on Monica's statements actually being true. However, since this is a criminal trial, the exclusionary rule applies to keep unconstitutionally obtained evidence from being introduced. If Ross claims that Joey's entry into the house was unreasonable, and that all of Joey's testimony should therefore be excluded, Joey may then tell the judge - but not the jury, that he entered the house because of Monica's cries for help.

In the second trial, Joey is called as a witness for Monica. In this trial, if Joey were asked to repeat Monica's statements to prove an assault occured, the statements would again be hearsay. Because the exclusionary rule does not apply in civil trials, Joey can not testify to those statements.

In the third trial however, Joey is not trying to argue that a murder was in fact about to take place. The officer is merely asserting that a genuine belief that a murder was about to take place. The officer repeats the victim's statements to show why the officer had a genuine belief. In that case, the statement is not hearsay. Whether the victim was about to be murdered does not matter, only that the officer genuinely believed a crime was occurring.

Theories supporting the hearsay rule

Today the hearsay rule has developed into a complex set of evidentiary rules of admissibility that are used to prevent various types of statements and documents from being entered into evidence in various types of court proceedings, though they may be allowed in other types of alternative dispute resolution. Generally speaking hearsay is a concept that developed in the common law legal tradition in the context of the adversarial system of decision making.

One rationale for the hearsay rule is that the credibility of the person being quoted (the out-of-court "declarant") or the declarant's observations cannot be cross-examined by the person against whom the testimony is being proffered. In this connection, the hearsay rule helps to protect the right of a criminal defendant (guaranteed under the sixth amendment to the U.S. Constitution) "to be confronted with witnesses against him." Another rationale, related to the first, is that hearsay statements are unreliable because the person repeating the declarant's statement may not do so accurately.

Hearsay exceptions

The fact that a statement is hearsay does not automatically mean that it is inadmissible in court. While hearsay is generally inadmissible as evidence in common law legal proceedings such as litigation there are many exceptions, some (but far from all) of which apply only when the original speaker (known as the declarant) is unavailable.

Many of the exceptions listed below are treated more extensively in individual articles. As an exercise, the reader may wish to see if there is a 'hearsay exception' to the police officer scenario above.

Hearsay exceptions that apply even where the declarant is available

  • Party admissions: any statements made by a declarant who is a party to the case that are offered against that party, even if that declarant had no basis for knowing the truth of the statement. For example, if an employee rushes to tell the director of a trucking company that one of his trucks has been in an accident, and the director says, "oh, we're behaving so negligently, lately," that statement will be admissible - even though the manager had no reason to know that this particular accident was the result of negligence. This is probably the most important category of exceptions to the inadmissibility of out-of-court statements.
  • Excited utterances: statements relating to startling events or condition made while the declarant was under the stress of excitement caused by the event or condition. This is the exception that may apply to the 'police officer' scenario listed above. The victim's cries of help were made under the stress of a startling event, and the victim is still under the stress of the event, as is evidenced by the victim's crying and visible shaking. An excited utterance does not have to be made at the same time of the startling event. A statement made a minutes, hours or even days after the startling event can be excited utterances, so long as the declarant is still under the stress of the startling event. However, the more time that elapses between a startling event and the declarant's statement, the more the statements will be looked upon with disfavor.
  • Present sense impressions: A statement expressing the declarants impression of a condition existing at the time the statement was made, such as "it's hot in here", or "we're going really fast". Unlike an excited utterance, it need not be made in response to a startling event. Instead, it is admissible because it is a condition that the witness would likely have been experiencing at the same time as the declarant, and would instantly be able to corroborate.
  • Declarations of present state of mind: Much like a present sense impression describes the outside world, declarant's statement to the effect of "I am angry!" or "I am Napoleon" will be admissible to prove that the declarant was indeed angry, or did indeed believe himself to be Napoleon at that time.

Another common exception is statments made in the course of medical treatment, i.e., statements made by a patient to a medical professional.

Hearsay exceptions that apply only where the declarant is unavailable

  • dying declarations and other statements under belief of impending death: often depicted in movies; the police officer asks the person on his deathbed, "Who did it" and the victim replies, "The butler did it".
  • declarations against interest: the declarant made a statement, such as confessing to a crime or admitting liability for a tort, that goes so clearly against the declarant's own interest that a reasonable person would not make such an admission unless the person believed it was true. This differs from a party admission because here the declarant does not have to be a party to the case, but must have a basis for knowing that the statement is true. Furthermore, evidence of the statement will only be admissable if the declarant is unavailable to testify.
  • the business records exception: business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the evidence is introduced into evidence. In this usage, business records has a very broad meaning and includes police records, or records of non-profit organizations. In the United States Federal Rules of Evidence, separate exceptions are made for public records, family records, and records in ancient documents of established authenticity. When regular or public records are kept, the absence of such records may also be used as admissible hearsay evidence.
  • prior testimony: if the testimony was given under oath and the party against whom the testimony is being proffered was present and had the opportunity to cross examine the witness at that time. Often used to enter depositions into the court record at trial.

Theories supporting hearsay exceptions

In some jurisdictions such as Canada the limited exceptions format to the rule have been replaced by a more general theory of exceptions to the hearsay rule that allows courts to decide when documents, testimony or other evidentiary proof can be used that might not otherwise be considered. [more can be written about this].

The underlying rationale for many of the hearsay exceptions is that the circumstances of a particular statement make them reliable enought to be heard by a trier of fact. Statements made during the course of medical treatment, for example, are considered reliable because patients typically have little reason to lie to a doctor while they are being treated, and will generally be accurate in describing their ailments.

This, of course, is not always true. Patients do sometimes lie to their doctors (to get painkillers they are not entitled to, for example). Hearsay exceptions do not mandate that a trier of fact accept the hearsay statement as true. Hearsay exceptions only mean that the trier of fact (a judge or jury) will be informed of the hearsay statement and get to consider it when they make their decision in the case. They are free to disregard a hearsay statement if they do not believe it. The hearsay rule only controls what out of court statements a trier of fact gets to consider in deciding a case, not how they consider the out of court statements.

External link

Hear'Say is the name of a British pop group.

HearSay.com (http://www.hearsay.com) is a technology law Web siteeo:Onidiro


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