Hearsay
An out-of-court statement offered in court to prove the truth of the matter asserted, generally inadmissible as evidence unless it falls within a recognized exception.
What Is Hearsay?
Hearsay is a statement that the declarant made outside of the current proceeding, offered in evidence to prove the truth of what the statement asserted. Federal Rule of Evidence 801 defines it precisely, and Rule 802 makes hearsay inadmissible unless an exception or exclusion applies. The hearsay rule reflects the law's preference for live testimony subject to cross-examination, where the jury can assess the witness's credibility.
Why Hearsay Is Generally Excluded
- The original declarant is not under oath - The declarant is not present for cross-examination - The jury cannot observe the declarant's demeanor - Repetition introduces the risk of mistransmission - The declarant's perception, memory, and sincerity cannot be tested
Major Exceptions and Exclusions
The Federal Rules of Evidence recognize over two dozen exceptions and exclusions. Common ones include:
- **Present sense impression** and **excited utterance** (statements made during or immediately after an event) - **Statements for medical diagnosis or treatment** - **Business records** and **public records** kept in the regular course of operations - **Records of regularly conducted activity** when properly authenticated - **Admissions by a party opponent** (statements made by an adverse party) - **Former testimony** when the declarant is unavailable and the opposing party had a prior opportunity to examine - **Dying declarations** in homicide cases
Non-hearsay uses also exist: a statement may be offered to show its effect on the listener, the declarant's state of mind, or that the statement was made, without being offered for its truth.