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What Is the Hearsay Rule, and What Are the Exceptions to It?

Posted on by Dawna M. Roberts in LawJanuary 09, 2023
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Courtroom dramas typically separate lawyers into two groups — the lawyers that object to everything and the lawyers with fewer lines than the bailiff.

Depending on the type of court case, you’ll hear phrases like "badgering the witness," "leading," or "speculation" thrown around. However, the hearsay objection is one of the most common and challenging to grasp.

A simple way to understand hearsay is to transform it into the phrase, “I heard someone say.” So, the defense may object if a witness begins repeating information they were told rather than what they personally witnessed.

This is the most common interpretation and can be accurate depending on the circumstances.

What most people don’t realize is that there are times when hearsay is admissible as testimony. The purpose of this objection is not to avoid including misleading or incorrect information. Instead, the hearsay objection is meant to prevent a situation where the opposing counsel can’t cross-examine the quoted party.

This sounds like a minor technicality, but it significantly determines what qualifies as hearsay.

For example, if a witness quotes his friend (also known as the declarant), who isn’t available for cross-examination, then the hearsay objection is valid. This is because the opposing lawyer cannot call the declarant forward for questioning.

However, if the declarant is a listed witness who can be called to the stand later, the current witness’s testimony can continue. This is because the opposing lawyer will get a chance to confirm or deny the truthfulness of those events.

what is objection hearsay

Exceptions to the Hearsay Rule

Now that you understand the exact definition of the hearsay rule, things will get even more complicated. There are many circumstances when a witness repeats second-hand information, but it’s not counted as hearsay, regardless of whether the declarant is present.

A prime example of this is when a witness refers back to a prior witness’s statements. While they aren’t directly communicating their own experiences, there is an automatic degree of trustworthiness to prior statements since they were made under oath.

Below are just a few other of the most common exceptions.

Present Sense Impression

The present sense impression allows any statement that recounts what the declarant was perceiving during or directly after the event in question. To qualify as a present sense impression, there should’ve been no time for the declarant to make a calculated statement, and the impression must be communicated directly to the witness testifying to it.

This exception is allowed since it involves the declarant’s immediate reaction, and the current witness’s testimony can qualify the accuracy of that reaction.

Excited Utterance

Similarly to the present sense impression, an excited utterance must occur during or immediately after the event being testified to. The difference is that some shocking or otherwise emotional occurrence must trigger the excited utterance.

A possible “emotional occurrence” would include witnessing a violent event or receiving morbid news. Often, statements made to 911 during an emergency call qualify as "excited utterances." The declarant is assumed to be panicked or emotional in these situations.

Excited utterances are accepted since the declarant wasn’t mentally able to fabricate a misstatement. They don’t have the time to create and share a false narrative that would better help them in the future.

Record Recollection

Statements that refer to information recorded through reliable sources are admissible under certain circumstances. These are:

  1. It involves a matter the testifying witness once knew but cannot recall in detail.
  2. It was created by the testifying witness when they were in the right state of mind and had a clear memory.
  3. Accurately reflects the witness’s previous statements.

This is most frequently seen when dealing with complicated deals that the witness entered into business or public records. They may refer to the information in these documents to back up their own testimony.

Statements Against Interest

Testimony that would hurt the declarant’s position is admissible. These statements don’t need to be full-on confessions of guilt but apply to any comments that negatively affect their side’s case. It’s essential to remember that just because a statement is admitted into court records doesn’t mean it should be assumed to be the truth.

For example, let’s assume the declarant is the accused’s brother in a domestic abuse case. If they privately told the testifying witness that they’d seen signs of abuse, it could act as a statement against their interest. This is because the declarant’s presumed interest is to prove their brother’s innocence.

Testimony Around Reputation in Social Circles

Someone’s reputation is an essential form of evidence. It gives the court an idea of each party’s character and can strengthen or weaken previous arguments. The problem is that reputation is almost always influenced by gossip, especially if you’re part of a large community.

This is why a hearsay exception is only made for reputational statements from family members (including spouses and adopted children) and close social circles. The person of interest spends the most time with these people, and their reputation here is relevant.

Rule 803(21) states, “The following are not excluded by the hearsay rule: the reputation of a person’s character among associates or in the community.”

Statements Made for Medical Diagnosis of Treatment

Any statement made by the declarant for a medical examination, diagnosis, or treatment is admissible in court. The idea behind this is that they have an inherent and compelling reason to be truthful in this situation.

Any lies the declarant tells during a medical visit could harm their health or put them through unnecessary treatments. As morbid as it is, the greater the health risk, the more reliable the declarant’s testimony is.

This exception is extremely similar to statements against interest. However, that exception deals with testimony that would weaken their side’s case. Statements made in a medical setting don’t necessarily have to cause harm to be admissible.

Dying Declarations

A dying declaration is a statement from a declarant who is unavailable due to their death. For their statement to be admissible as non-hearsay, it needs to be made while the declarant is aware of their impending death, and it needs to be related to the circumstances surrounding their death.

Not just anything can work its way into court. The statement still needs to follow all the other rules, including a clear state of mind and being based on the declarant’s firsthand experiences. Only then can a testifying witness use it as a non-hearsay statement. 

Conclusion

Fully understanding the meaning behind each objection is vital to following a critical case. Reading the transcripts can give the public an accurate idea of which side is in a stronger position or where the judge is showing bias.

The hearsay rule and exceptions are just the tip of the iceberg. Various other forms of objections and precedents inform the decisions of everyone in the courtroom. Our blog has all the information you’ll need to closely follow any case and stay informed on the issues you care about!

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