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Hearsay Evidence

The prohibition against admitting out-of-court statements to prove the truth of the matter stated, known as hearsay, is a cornerstone of American trial procedure. Testimony that "she told me that John hit Jane" is improper because the "declarant," or the person who made the original statement to the testifying witness, is not present in court and sworn in under oath. In criminal cases, the rule against hearsay is especially crucial, since a defendant has the constitutional right to confront witnesses testifying against him. Furthermore, the jury is entitled to examine the credibility, demeanor and appearance of a declarant and the admission of hearsay testimony robs jurors of that opportunity.

The rule against hearsay is complex due to a myriad of exceptions available to allow the admission of many hearsay statements. Since hearsay is prohibited because it generally goes to prove the truth of the matter, (for example, that John did, in fact, hit Jane), if another reason for the statement's admissibility is shown and the declarant is unavailable, the jury will often be allowed to hear the testimony. Federal and state rules of evidence set out the many exceptions to the hearsay rule, including, hearsay statements that are:

  • excited utterances-"I heard her scream, 'oh no, he shot me'";
  • proof of the declarant's then existing state of mind-"she was trying to get away and screaming that he was shooting at her";
  • made for purposes of medical treatment-"she told the paramedic he shot her";
  • recorded or written down-diary entry that "he bought a gun";
  • public records-gun owner's license;
  • family records-old photographs of a gun used in a shooting; or
  • real estate or property records.

Hearsay that does not fall within one of the many specific exceptions can still be admitted under the "residual" or catch-all exception. Courts will allow hearsay testimony under this exception if the statement has a guarantee of trustworthiness. For example, a newspaper article devoted to the defendant's gun collection, including the one used in a shooting, may be admitted under the residual exception.