Evidence: Hearsay
Evidence: Hearsay
Hearsay is one of the most tested and most misunderstood topics in evidence law. It looks simple at first: an out of court statement offered to prove the truth of what it asserts is generally inadmissible. In practice, the rule is a framework built around careful definitions, common non-hearsay uses, and a long list of exclusions and exceptions that can make an out of court statement admissible for very specific reasons.
This article explains what hearsay is, what it is not, how “hearsay within hearsay” works, and the major exclusions and exceptions you are expected to recognize, including present sense impression, excited utterance, business records, and prior statements.
What Hearsay Is and Why It Is Restricted
The core definition
A statement is hearsay when it meets both parts of the classic test:
- It is an out of court statement (spoken, written, or nonverbal conduct intended as an assertion).
- It is offered to prove the truth of the matter asserted.
The rule is not a moral judgment about honesty. It is about reliability and fairness. When a witness repeats what someone else said, the opposing party cannot cross examine the original speaker about perception, memory, narration, and sincerity. Hearsay is therefore generally excluded unless a rule says it can come in.
“Statement” and “declarant” matter
A “statement” includes:
- Oral or written assertions.
- Nonverbal conduct intended as an assertion (a deliberate nod, pointing to identify a person, etc.).
It does not include conduct not meant to communicate (running away, hiding, silence in many contexts), though such behavior may still be relevant as circumstantial evidence.
The declarant is the person who made the statement. If the declarant is not testifying in court about that statement, the hearsay problem arises.
Non-Hearsay Uses: When the Statement Is Not Offered for Its Truth
Many courtroom disputes labeled “hearsay” are really about purpose. A statement can be admissible if it is offered for a non-truth purpose, such as:
Effect on the listener or reader
If the point is that the listener heard the statement and reacted, the statement is not offered for truth. Example: “He told me the bridge was out” may be offered to explain why the witness took a different route, not to prove the bridge was actually out.
Notice or knowledge
A warning letter, a complaint, or a prior report may be offered to prove the recipient had notice, not that the underlying allegation was true.
Verbal acts and legally operative language
Certain words have independent legal significance: forming a contract, making a gift, giving consent, defaming someone, or making a threat. When the law cares that the words were said, the statement is not hearsay because it is not used for truth.
Circumstantial evidence of state of mind
Statements can be used to show motive, intent, or belief indirectly, sometimes without relying on their truth. The line is subtle, and courts often analyze these under hearsay exceptions as well, especially when truth is doing real work.
Hearsay Exclusions: Statements Defined as “Not Hearsay”
Evidence rules commonly treat several categories as non-hearsay even though they are out of court statements offered for their truth. These are not “exceptions”; they are defined as outside the hearsay rule.
Prior statements of a testifying witness
When the declarant testifies and is subject to cross examination, certain prior statements are treated as non-hearsay:
- Prior inconsistent statement given under oath at a trial, hearing, or deposition.
- Prior consistent statement offered to rebut a charge of recent fabrication or improper motive, when it predates the alleged motive.
- Prior statement of identification (such as a lineup identification) made after perceiving the person.
Opposing party statements (often called admissions)
A statement offered against an opposing party is typically non-hearsay when it is:
- The party’s own statement.
- Adopted by the party (including adoption by silence in circumstances where a response would be expected).
- Made by an authorized spokesperson.
- Made by an agent or employee on a matter within the scope of the relationship during it.
- Made by a co-conspirator during and in furtherance of the conspiracy.
These rules reflect that parties can be held to their own words, and fairness concerns differ when the statement is used against the speaker’s side.
Hearsay Within Hearsay (Double Hearsay)
“Hearsay within hearsay” arises when a statement contains another statement. A common example is a business record that includes a customer’s quote, or a police report that quotes a bystander.
The key rule: each layer must be independently admissible through an exclusion or exception.
Example: A hospital record (business record) notes: “Patient says he was hit by a truck.” The record itself might qualify as a business record, but the patient’s embedded statement must also fit a separate path, such as a statement for medical diagnosis or treatment.
Major Hearsay Exceptions (Declarant Availability Often Irrelevant)
Many exceptions apply whether or not the declarant is available to testify. These tend to rest on immediacy, routine, or institutional reliability.
Present sense impression
A statement describing or explaining an event or condition made while perceiving it or immediately thereafter. The theory is reduced risk of fabrication due to timing. Example: “The car just ran the red light.”
Excited utterance
A statement relating to a startling event made while the declarant is under the stress of excitement caused by the event. The focus is on continuing stress, not clock time. Example: minutes after a crash, “He came out of nowhere and hit us.”
Then-existing mental, emotional, or physical condition
Statements of current state of mind, feeling, pain, or intent can be admissible to show that condition. Example: “I am terrified of him” or “My head hurts.” Statements of memory or belief to prove the fact remembered are generally excluded, which prevents backdoor proof of past events.
Statements for medical diagnosis or treatment
Statements made for medical diagnosis or treatment describing symptoms, medical history, or the cause of an injury when reasonably pertinent to treatment. These are admitted because patients have a strong motive to be accurate.
Recorded recollection
When a witness once knew something but cannot now recall well enough, a record made or adopted when the matter was fresh and accurate can be read into evidence. Typically it is read, not admitted as an exhibit, unless the opposing party offers it.
Business records
Records of regularly conducted activity are admissible when made at or near the time by someone with knowledge, kept in the ordinary course, and supported by a qualified witness or certification, unless circumstances indicate a lack of trustworthiness. This exception is heavily tested because it is powerful and frequently invoked.
A recurring issue is the source of information. If the record includes information from outsiders, that embedded content needs its own exception.
Public records
Records or statements of a public office may be admissible for matters observed under a legal duty to report, or factual findings from a legally authorized investigation in appropriate settings, subject to trustworthiness limits. Testing often focuses on the boundary between routine government records and adversarial, litigation-driven reports.
Past recollection, routine, and family history categories
Other commonly tested exceptions include:
- Records of vital statistics (birth, death, marriage).
- Absence of a record to prove something did not occur when it normally would be recorded.
- Reputation concerning personal or family history, boundaries, or community character in narrow contexts.
Exceptions Requiring Declarant Unavailability
Some hearsay exceptions apply only when the declarant cannot testify, reflecting a compromise between necessity and reliability.
Former testimony
Prior testimony is admissible if the opposing party (or a predecessor in interest, depending on the setting) had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Statement against interest
A statement so contrary to the declarant’s pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true. When offered to exculpate an accused, courts often demand corroboration.
Dying declaration
In a homicide prosecution or civil case, a statement made while believing death to be imminent about the cause or circumstances of the impending death can be admissible.
Statement of personal or family history
Statements about one’s own birth, marriage, ancestry, or similar facts may be admissible when the declarant is unavailable, reflecting the practical difficulty of proving such matters otherwise.
A Practical Checklist for Hearsay Analysis
A disciplined approach prevents missed issues:
- Identify the statement and the declarant.
- Ask: is it offered for its truth?
- If not, explain the non-hearsay purpose (effect on listener, notice, verbal act).
- If yes, check exclusions (prior statements, opposing party statements).
- If still hearsay, test exceptions, paying attention to foundational requirements.
- For double hearsay, repeat the analysis for each layer.
Hearsay doctrine rewards precision. The key is not memorizing labels, but understanding what the rule is trying to protect and why a specific exception is considered trustworthy enough to overcome the normal ban.