Witnesses in our justice system are supposed to testify from firsthand knowledge. It is for juries to determine whether a witness is credible, how much weight to assign a witness’ testimony and what inferences to draw from it. The hearsay rule is a corollary to this principle. It prohibits witnesses from testifying as to what other people told them to ensure that people testify only as to what they observed firsthand.
Moreover, the hearsay rule is designed to protect the efficacy of cross examination, which allows opposing parties to try to impeach witness’ testimony or draw testimony that might mitigate the value to the other parties. However, if the witness is testifying as to what someone else told her, cross-examination can be ineffective.
Consider a witness who testifies that he saw a red Toyota run a stop sign. The opposing attorney might ask the witness if he is nearsighted, if he’s biased against the driver of the red Toyota or if he was really at another location at the time of the accident. The witness would have to answer these questions under oath and under penalty of perjury and the jury would get the chance to assess his credibility.
On the other hand, consider the same witness testifying, “Jane told me that she saw the red Toyota run the stop sign.” Now, the opposing attorney’s questions would have to focus on whether Jane is nearsighted, whether Jane is biased against the driver of the red Toyota or if Jane was really at another location at the time of the accident. The witness might not know any of these answers. It’s Jane’s credibility that’s really at issue and the jury never gets to see Jane cross-examined and never gets to assess Jane’s credibility.
It is primarily for this reason that the U.S. Constitution’s Sixth Amendment guarantees a criminal defendant the right to confront his accuser.
Hearsay also applies to earlier statements made by the current witness. For example, if a witness says, “According to my notes that I took at the time, I saw the red Toyota run the stop sign,” that is hearsay. Although the witness is there to be cross-examined, it is the witness’ statement at the time of the note-taking that is really at issue. For example, if the opposing attorney asks, “Were you wearing your glasses at the time?” the witness might respond “I don’t remember. I only know what my notes say, and my notes don’t say anything about glasses.”
Because the focus of the hearsay rule is to avoid questionable evidence being admitted without being subject to cross-examination, the rule is narrow in scope and subject to myriads of exceptions. In the remainder of this module, we will focus on when the hearsay rule applies and on its most common and important exceptions.
Note that there are two relevant parties to any hearsay discussion: The “witness” is the person now testifying. This person is subject to cross-examination and so the hearsay rule is NOT designed to prevent that person from testifying. The ‘declarant” is the person whose statement is being repeated. This person is not subject to cross-examination and thus the rule’s target.
When the Hearsay Rule Applies
Under Federal Rule 801, hearsay is an out of court statement offered for the “truth of the matter asserted.” A “statement” does not have to be verbal. It can include a head nod (as in, “I asked Jane whether the red Toyota was speeding, and she nodded.”), a signature on a statement, a point of a finger or anything that can be construed as making an assertion.
The “truth of the matter asserted” requirement means that a statement is only hearsay if the truth of the statement and the credibility of the declarant are important. If the statement has no truth value or if truth value is irrelevant, then the statement is not hearsay.
For example, testimony that someone else engaged in a “verbal act” is not hearsay. A “verbal act” (also sometimes referred to as “legally operative language”) is accomplishing something through words rather than making an assertion. Testifying that someone made an offer, accepted an offer or advertised a product is not hearsay. A witness may testify that “Joan offered to sell her car to Dave for $5,000 and Dave agreed.” While the witness is attesting to two out-of-court statements (those of Joan and Dave), neither are offered for their truth and neither’s value depends in any way on the credibility of the declarants. It makes no difference whether Joan and Dave are credible. The witness is merely testifying as to their acts (offering and accepting a contract), not their assertions. The jury doesn’t need to see Joan or Dave cross-examined since their credibility is irrelevant.
By the same token, if a statement is offered to show the state of mind of the declarant or for its effect on the listener, it’s not hearsay. Imagine Don is on trial for assaulting Rich. Sue testifies that, prior to the incident, she heard Don say, “I can’t believe that no good jerk Rich has been sleeping with my girlfriend! I thought he was my friend!” This is not hearsay. While Don is the declarant and his statement is out-of-court and may or may not be true, it makes no difference whether it’s true. It’s being offered to show that Don was angry at Rich. This is shown equally regardless of whether Rich really slept with Don’s girlfriend.
Alternatively, assume the witness testified that Sheila told Don that Rich had been sleeping with Don’s girlfriend to show that Don had a motive to be angry at Rich. Whether Sheila’s statement is true is irrelevant. Either way, it could potentially have the effect of making Don angry at Rich. As such, it is not hearsay.
Finally, Rule 801(d) identifies two types of statements that are “not hearsay” (though, in fact, they are technically hearsay but are exempted from the hearsay rule):
- A declarant’s prior statement under oath at a trial, hearing or deposition, that is inconsistent with her prior statement. If, for example, Debbie says at a deposition that the Toyota was red, but later testifies at trial that the Toyota was green, a party may introduce her deposition statement to show that the Toyota was green or to show that Debbie is mistaken or lying. The rule also allows a similar prior statement that’s consistent with the present testimony to rebut a “charge that the declarant recently fabricated it.” So, if Debbie said at a deposition and at trial that the Toyota was speeding but is accused on cross-examination of recently changing her story, her proponent may introduce her deposition testimony to show that her story has been consistent.
- The “admission” of a party opponent. In a civil case, this means that either party may introduce evidence of a statement by the opponent or an agent or authorized representative of the opponent. In a criminal case, this means that the prosecution can introduce evidence of statements by the defendant. This rule is the reason confessions of criminal defendants are admissible. Note that while the rule uses the term “admission,” any statement of a party opponent qualifies.
Hearsay Exceptions – Declarant’s Availability Immaterial
Rule 803 lists 23 exceptions to the hearsay rule. Their common thread is that their circumstances indicate that they are reliable assertions. Since they’re reliable, it’s not critical that the jury get to see the declarant’s demeanor or see him get cross-examined. The information is reliable on its own and is thus admissible. The Rule 803 exceptions apply whether or not the declarant is available.
The first Rule 803 exception is the “present sense impression.” This allows testimony that the declarant described events as they were occurring. The theory here is that people don’t generally lie when describing an event as it’s occurring. For example, if a person calls “911” and says, “There’s a fight going on outside my window and the big dude in the black sweater is pounding the little guy in red,” the “911” operator can testify as to what the caller said, even if the caller is never identified.
The exception doesn’t require that the description be literally simultaneous with the events. As the New York Court of appeals explained, it would be “virtually impossible to describe a rapidly unfolding series of events without some delay between the occurrence and the observer’s utterance.” Still, the “description of events must be made ‘substantially contemporaneously’ with the observations.” A person making a 911 call and describing a fight that happened 20 minutes ago and is now over would not be a present sense impression.
The second Rule 803 exception is the “excited utterance rule,” which allows testimony of a declarant’s statement that relates to “a startling event or condition, made while the declarant was under the stress of excitement that it caused.” The theory is that people’s spontaneous excited statements are rarely calculated enough to be lies. For example, let’s assume our caller in the previous example waits until the fight is over to call 911, but then describes the fight as, “WOW! That big guy in the black sweater nearly KILLED the little guy in red!!!!”
Rule 803(3) allows a statement of the declarant’s “then-existing state of mind.” So, if the witness testifies that “Joan told me she was angry” or “tired” or “had a headache,” the testimony is admissible even if offered for its truth (that Joan was angry or tired or had a headache). The rule also allows evidence of state of mind to show what may have occurred thereafter. Testimony that a person stated at 5 PM that he intended to go to Restaurant A at 7 PM can be used to show his attendance at Restaurant A at 7 PM. In fact, the rule allows evidence of state of mind to show where someone else may have been at a given time. So, testimony that Jane stated at 5 PM that she intended to go to Restaurant A at 7 PM to meet John can be admitted to show that John was at Restaurant A at 7 PM.
Rule 803(4) allows statements made for purposes of obtaining medical diagnosis or treatment (on the theory that people don’t usually lie when seeking medical treatment). Nothing in the rule limits the exception to where the statement is made to a medical professional, but it must be made to someone who could be reasonably calculated to assist with medical treatment.
Rule 803(5) allows recorded recollections. If a witness “once knew” something “but now cannot recall well enough to testify fully and accurately,” but has notes on the matter from when it was “fresh in the witness’s memory,” she may testify as to the contents of those notes.
Subsections 6 and 7 allow records of a “regularly conducted activity” (or the absence of such records) if the records were made in the ordinary course of business. So, for example, a prosecutor may introduce the content of a hospital record or corporate meeting minutes even though those constitute hearsay.
Most of the rest of the Rule 803 exceptions relate to official documents like public records, birth and marriage certificates, deeds and family records and to textbooks, newspapers and the like. While these were presumably all written by people who are not now testifying and are thus hearsay, they are considered independently reliable and thus admissible. That doesn’t mean they’re always accurate, of course, or that the jury must believe them, but they’re considered reliable enough to at least allow into evidence. Opinion and reputation testimony allowed under Rule 404 (the character evidence rules) is also exempted from the hearsay rules even though they inevitably arise from second-hand information and thus would be inadmissible hearsay were it not for the exceptions.
Hearsay Exceptions – Declarant Unavailable
Rule 804 sets forth another list of hearsay exceptions with an important caveat: these apply only when the declarant is unavailable. A declarant is considered unavailable if she is exempted from testifying due to privilege (such as attorney-client), refuses to testify despite a court order, does not remember the incident or is dead, disabled, too ill to testify or otherwise cannot be brought to testify.
There are five hearsay exceptions under Rule 804:
- Former Testimony. This allows in the statement of the unavailable declarant when the statement was given at a prior trial, hearing or deposition, if the opposing side in that hearing had the opportunity to cross-examine.
- Dying Declaration. This allows testimony made while the declarant believed death to be imminent. Note that the declarant need not have died at the time or be dead now; he must merely have thought that he was going to die imminently.
- Statement Against Interest. This includes statements against the declarant’s “proprietary or pecuniary” interest and those that tend to invalidate a claim of the declarant or subject him to civil or criminal liability. Examples include a declarant admitting to owing money, admitting that a deed in his favor is fraudulent and confessing to having committed a crime.
- Statement of Personal History. This includes a declarant’s statement about her lineage, family history and so forth and includes the declarant’s similar statements about close relatives.
- Statement offered against a party that wrongfully caused the declarant’s unavailability. This allows witnesses to testify as to statements made by declarants who were killed, intimidated or otherwise rendered unable to testify by the defendant or someone working for the defendant.
Other Hearsay Rules
Finally, we’ll conclude our hearsay discussion with the special hearsay rules under Rules 805-807 of the Federal Rules of Evidence.
Rule 805 governs hearsay within hearsay. Sometimes, testimony contains multiple layers of hearsay,  such as “Don told me that Sue told him that the silver Chevy ran the red light.” Such testimony is admissible only if each level of hearsay is covered by a hearsay exception. For example, if Wally Witness testified, “Doug told me on the phone that Sarah was jumping up and down and screaming that the Chevy was going at least 100 MPH,” the testimony is probably admissible although it is hearsay within hearsay. Sarah’s statement to Doug is covered by the excited utterance exception. Doug’s statement to Wally was a present sense impression.
Rule 806 says that when hearsay is allowed, the opposing side may impeach the declarant in the same manner that other witnesses may be impeached. It may be recalled that opponents may impeach witnesses, including through evidence of bias, dishonesty and certain other “bad acts” that impugn the witness’ truthfulness. For example, Lisa’s testimony that John told her that his neck hurt him after a car accident is admissible under Rule 803(3) because the declarant is describing a then-existing medical condition. However, the opponent may bring evidence that John has a reputation for being a liar or that John had a motive to lie – to try to collect damages for his injuries.
Finally, Rule 807 provides a catch-all exception that allows hearsay to be admitted if it contains “circumstantial guarantees of trustworthiness,” is offered as evidence of a material fact, cannot be proven by other means and “admitting it will best serve the purposes of these rules and the interests of justice.” Though this is a high threshold to meet, it allows courts to admit evidence that is reliable for reasons not anticipated in Rules 803 and 804. For example, a federal appellate court allowed the government to produce a letter from a partnership’s bankruptcy trustee waiving the partnership’s attorney-client privilege under the residual exception. The Second Circuit also allowed the statement of the defendants’ co-conspirator when it deemed that she had no reason to lie, under the same exception.
 James Allen, The Working and Rationale of the Hearsay Rule and the Implications of Modern Psychological Knowledge, 44 Current Legal Problems 217, 217 (1991)
 See Maryland v. Craig, 497 U.S. 836, 845-46 (1990).
 Fed.R. Evid. 801(c).
 See Advisory Committee Note to Rule 801.
 Fed. R. Evid. 801(d).
 Fed.R. Evid. 803.
 See People v. Vasquez, 88 N.Y.2d 561, 575 (1996).
 See Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285, 295-96 (1892).
 See United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976).
 Fed.R. Evid. 804(b).
 Fed.R. Evid. 805.
 Fed.R. Evid. 806.
 Fed.R. Evid. 807.
 State v. Silverman, 121 Ohio St. 3d 581, 586-87 (2009).
 See United States v. Campbell, 73 F.3d 44, 48 (5th Cir. 1996).
 See United States v. Morgan, 385 F.3d 196, 208-09 (2d Cir. 2004).