In order to understand if hearsay is admissible as against you in a criminal trial, it is important to understand what hearsay is. A witness is testifying about something he or she heard or read from someone else, not something he or she directly witnessed. The courts generally avoid using second hand, out-of-court statements as evidence due to the inherent unreliability of second-hand statements. Although the rules concerning hearsay seem simple, there are exceptions.
What is Hearsay?
Hearsay is any statement made outside of court, but used in court in an attempt to prove the truth. An out-of-court statement may include spoken words, documents, or body language. The rules against admitting hearsay are in place to prevent offering it as evidence in court to convict someone of a crime.
The Federal Rules of Evidence (FRE) explain in detail how federal courts should treat hearsay. Basically, hearsay is not admissible unless a statue or an exception allows it. The FRE has almost thirty such rules. Most, but not all, state courts follow the same rules.
Exceptions to the Hearsay Rule
FRE Rule 803 outlines the exceptions to the hearsay rule. The three most commonly used are Present Sense Impression, Excited Utterance and Then-Existing Mental, Emotional, or Physical Condition.
- Present Sense Impression – This is a statement that describes or explains an event. It must be contemporaneous, meaning someone made the statement during the event or immediately after the event.
- Excited Utterance – This is a statement made while under the excitement or stress of the event.
- Then-Existing Mental, Emotional, or Physical Condition – This is a statement the prosecution offers to show state of mind, emotion or physical condition. An example would be to show that the defendant was angry or agitated during the event, not to verify any kind of statement he or she made.
Several other kinds of statements may commonly be admissible as evidence in court under FRE Rule 803, such as statements made to medical providers for the purpose of diagnosis or treatment, and statements concerning the defendant’s reputation. Another commonly admissible category is documentation like government and business records, family records and records from churches and organizations where the defendant is a member.
What If the Person Who Made the Statement Cannot Testify in Court?
While the Sixth Amendment to the United States Constitution guarantees the right “…to be confronted with the witnesses against him…,” FRE Rule 803 provides exceptions to allow out-of-court statements when the person who made the statement, called a declarant, is unavailable to appear. The courts can consider declarant unavailable under certain circumstances.
- The court recognizes the declarant has no legal obligation to testify.
- The declarant refuses to testify in court.
- The declarant does not remember.
- The declarant is dead or has an illness testimony in court.
- The declarant is absent and unfindable.
If the court deems the declarant unavailable, only certain types of evidence from the declarant is admissible. These include former in-court testimony, statements made under the belief of imminent death (death bed confessions), statements against a person’s own interest, and personal or family histories. While usually otherwise considered hearsay, they are admissible when the declarant is unavailable.
General Exception to Hearsay
The general exception, often called the catchall rule, allows the admission of a hearsay statement that doesn’t meet the criteria listed in the other exceptions into evidence if:
- It sounds guaranteed and trustworthy
- It proves a material fact
- It provides more information other equivalent and reasonably obtainable evidence
- Admitting it would forward the cause of justice
- All parties know of its intended use in court
Hearsay can significantly change the course of your criminal trial. The government may be relying on some exceptions to the hearsay rule for your case. While there are several exceptions to the hearsay rule, this does not automatically mean the evidence is acceptable in court. If you are in a criminal trial which involves hearsay, a skilled criminal defense attorney can help you challenge questionable evidence. A seasoned attorney can help you build your strongest legal case.