Today we will discuss a well-known rule of evidence called “hearsay.” Many have heard about it, and have a general understanding of what it may be, but today’s blog will focus on explaining the intricacies of the hearsay rule. The rule against hearsay is deceptively simple and full of exceptions. Hearsay is an out of court statement, made in court, to prove the truth of the matter asserted. In other words, hearsay is evidence of a statement that was made other than by a witness while testifying at the hearing in question and that is offered to prove the truth of the matter stated. For example, Witness A in a murder trial claimed on the stand: “Witness B (the “declarant”) told me that the defendant killed the victim.” The definition of hearsay is not too difficult to understand. But the matter can become very confusing when one considers all of the many exceptions to the general rule against hearsay.
Even if a statement meets the requirements for hearsay, the statement may yet be admissible under one of the exceptions to the hearsay rule. The Federal Rules of Evidence (FRE) contains nearly thirty of these exceptions. Most of them are generally available, although a few of them are limited to times when the declarant is unavailable.
There are twenty-four exceptions in the federal rules that do not require proof that the person who made the statement is unavailable. These are:
Business records, including those of a public agency
Certain public records and reports
Evidence of a judgment of conviction for certain purposes
Evidence of the absence of a business record or entry
Excited utterances or spontaneous statements
Family records concerning family history
Judgments of a court concerning personal history, family history, general history, or boundaries, where those matters were essential to the judgment
Learned treatises used to question an expert witness
Market reports, commercial publications, and the like
Marriage, baptismal, and similar certificates
Past recollections recorded
Recorded documents purporting to affect interests in land
Records of religious organizations concerning personal or family history
Records of vital statistics
Reputation concerning boundaries or general history
Reputation concerning family history
Reputation of a person’s character
Statements about the declarant’s present sense impressions
Statements about the declarant’s then existing mental, emotional, or physical condition
Statements in authentic ancient documents (at least 20 years old)
Statements in other documents purporting to affect interests in land and relevant to the purpose of the document
Statements made by the declarant for the purpose of medical diagnosis or treatment
Statements of the absence of a public record or entry
The “catchall” rule
The last exception, the so-called “catchall” rule, bears some explanation. This rule does not require that the declarant be unavailable to testify. It does say that evidence of a hearsay statement not included in one of the other exceptions may nevertheless be admitted if it meets these following conditions:
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