THE HEARSAY RULE AND ITS EXCEPTIONS
"There are a thousand thoughts lying within a man that he does not know" (William Makepeace Thackeray)
Hearsay is "second-hand" information. It occurs when a witness testifies NOT about something they personally saw or heard, but testifies about something someone else told them or said they saw. Hearsay usually involves an attempt to get some crucial fact entered into evidence that cannot be entered into evidence by any other means. The constitutional due process danger that this represents is that it deprives the other side of an opportunity to confront and cross-examine the "real" witness who originally saw or heard something. The confrontation clause of the Sixth Amendment has never been interpreted so literally as to preclude hearsay evidence. Care must be taken to avoid hearsay from consisting of rumor, gossip, or scuttlebutt. There are times when hearsay evidence is perhaps the right thing to do -- as in cases where a young child has been molested -- and, there are times when hearsay evidence is the only thing to do -- as in cases where the original witness has died or is unavailable. Hearsay is dangerous evidence, and there are basically four dangers of it: perception, memory, narration, and insincerity.
At common law, there were five well-established exceptions to the hearsay rule, and these exceptions have been a part of the hearsay rule from the beginning. Today, there are almost three times as many exceptions (10-20 depending upon how you do the counting), and it's not that hearsay exceptions are a growing area of evidence law, but only that more practical reasons exist making it necessary to add more exceptions. The hearsay rule, its exceptions, and hearsay evidence are some of the most defining features of Anglo-American criminal justice. It is appropriate to think of the hearsay rule as the main exclusionary rule in all of evidence law.
HISTORY AND DEFINITION
The origins of the hearsay rule can be traced to the trial of Sir Walter Raleigh in 1603, who was found guilty of high treason on the basis of testimony that someone had overheard someone else say they heard Raleigh would slit the King's throat. The disgrace of this trial and its wrongful conviction led English jurists to develop a hard and fast rule against hearsay evidence, with hearsay defined as the words of a stranger to parties; that is, the words of someone to which neither the State nor the defendant are privy. Not being privy to the person who spoke the original words means that an "out-of-court" statement is being repeated in court by a person who overheard another person outside of court make a statement, and indeed, this is the common law definition of hearsay (Klotter & Ingram 2004). However, there is more to it, and what matters most is the purpose for which the words are used. NOT ALL OUT-OF-COURT STATEMENTS ARE HEARSAY. Scholars frequently distinguish between (a) "assertion-centered" hearsay and (b) "declarant-centered" hearsay, as so do the Federal Rules of Evidence. FRE Rule 801 is as follows:
FRE Rule 801 (definitions)
|The following definitions apply under this
(a) Statement -- A "statement" is (1) an oral or written assertion or (2) the nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant -- A "declarant" is a person who makes a statement
(c) Hearsay -- "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
The first type -- (a) assertion-centered hearsay -- is intended solely to prove the truth of some matter or crucial fact in the trial. For example, if a witness is called to say they heard the defendant was out-of-town at the time a murder was committed, this attempt at an alibi defense would be based on hearsay. The second type -- (b) declarant-centered hearsay -- depends upon the credibility of the witness. For example, if a scientific (forensic) expert is called to testify about the supposed reputation some scientific technique enjoys in the scientific community, then their testimony may or may not be hearsay depending upon the qualifications and credibility of that expert. There are many kinds of cases, such as libel, slander, and copyright infringement, where a credible hearsay witness is often needed to establish, in that witness' opinion, if damage or harm was widely perceived by a larger community. In criminal cases, the most common scenario involves type (a)(2) hearsay, in which the nonverbal conduct of a witness gives away, betrays, or impeaches their true intent, for example, when an alibi witness is found to be demonstratively lying because they have some reason to lie, or had some gift or present purchased for them by the defendant. In such cases, this kind of impeached hearsay evidence might be admitted at trial and used against the defendant since the witness never intended to assert the truth or the nonverbal conduct that was going on behind the scene. Likewise, when the government relies upon impeachable hearsay evidence, there are grounds for reversible error of a conviction.
PROOF, TRUTH, AND DOUBT
It should be obvious that the hearsay rule is intimately involved in legal inferences of "proof" and "truth" as well as all things relating to witness reliability, sincerity, perception, and memory. You'll also find the interesting notion of "trustworthiness" tied into probabilistic conceptions of reasonableness and doubt in this area of evidence law. Hearsay is an alternative to formal proof, but it is not necessarily non-logical proof. Legal reasoning is quite deductive in this area, requiring consideration of ulterior motive by working backwards from the actual assertion or declaration, as well as consideration of whether or not the non-hearsay purpose of any such evidence drowns out the hearsay purpose. Hearsay evidence is powerful evidence, and more often than not, contains implied assertions that weigh heavily on matters of guilt, or at least weigh heavily as inferences in the minds of the jury. In some cases, hearsay may even contaminate a case from the beginning of a police investigation. Consider the example of U.S. v Hernandez (1985):
United States v. Hernandez, US Court of Appeals, 5th Cir, 1985, 750 F.2d 1256
|The DEA received a referral from U.S. Customs that a "known cocaine smuggler" was operating in the area, so the DEA set up a sting operation which netted an arrest and two kilos of cocaine. At the trial, the DEA special agent was asked what first brought the defendant to the attention of the DEA, and the agent said a referral from Customs about a drug smuggler. When asked further about the exact nature of the referral, the agent said it was about a known cocaine smuggler. The conviction was reversed because the hearsay from Customs implied evidence of guilt rather than the more open state of mind that DEA agents should have at the inception of an investigation.|
The above case illustrates the importance of conduct as implying an assertion, or type (a)(2) hearsay. The Federal Rules of Evidence grant special importance to conduct in determining whether something qualifies as hearsay or non-hearsay (Falknor 1961). It is NOT hearsay if a person acts in a way consistent with their belief but without intending to express or communicate that belief. It IS hearsay when that person's conduct is self-verifying, and their actions express an asserted belief in the proof of something. NOTHING IS AN ASSERTION UNLESS IT IS INTENDED TO BE ONE. Conduct can be entered into evidence if a person acts "as if" their belief leads them to infer something that needs to be proven. Conduct is inadmissible hearsay if their belief is acted upon in a way that implies they are already convinced of proof. It's ironic, I know, but this is exactly how the law of hearsay determines truthfulness -- by how much "normal" doubt exists in the mind of a hearsay witness. Sometimes, the conduct of a household pet, such as a dog or parrot, is of more evidentiary value than the testimony of a human whose motives are naturally suspect (Waltz & Park 1999). It all depends upon what inference is being drawn in the mind of the person offering such evidence, as well as what practical reasons the court has for considering such evidence.
THE COMMON LAW EXCEPTIONS
The following list attempts to present the exceptions in historical and meaningful order, although another useful way to classify the hearsay exceptions is to indicate which ones require the declarant to be unavailable and which ones do not. The concept of declarant unavailability is itself a matter of some discretion, but as a general rule, the following require unavailability: dying declarations, declarations against interest, and former testimony; and the following do NOT require unavailability: spontaneous or excited utterances, present sense impressions, business and public records, and states of mind and physical condition.
(1) DYING DECLARATIONS -- This is one of the oldest exceptions to the hearsay rule at common law. The basic assumption, be it right or wrong, is that the solemnity surrounding the act of dying, or a belief that one is dying, tends to impel truthfulness. Of course, this is an imperfect assumption, but the law since ancient times has long held that the risk of admitting a deceitful dying declaration is far outweighed by the need to protect the public from homicidal criminals who might go free if unidentified by any other means. Most state-level evidence rules restrict this exception to murder trials only, and some states actually require death, not just the belief of immanent death, and yet other states have had controversies involving victims that lapse into coma or recover from critical injuries. Juries always have the right to grant as much value or weight to a dying declaration as they see fit. Before a dying declaration can be admitted into evidence, the circumstances surrounding the death, and more importantly, the events leading up to the defendant's role in conduct that might have led to the death or dying declaration, need to be described in detail. In practice, medical doctors and other experts may also be called to testify about states of consciousness that preceded death, but it is highly unlikely that the court will overturn years of precedent in the face of any expert testimony suggesting that people sometimes lie before dying. Medical and emergency personnel, along with police officers responding to crime scenes, are the ones most likely to testify about a victim's dying declaration, and the cross-examination of such witnesses can be brutal. Many police departments and other professionals have given up on the careful note-taking required to legally document a dying declaration, and instead rely upon admitting this kind of evidence under another exception -- spontaneous or excited utterances.
(2) SPONTANEOUS OR EXCITED UTTERANCES -- This is an English common law exception to the hearsay rule that dates back to the mentalistic psychology inherent in utilitarian philosophy. The reader will remember that utilitarian philosophy is based on the principle that all human behavior involves planning, reflection, and self-interest. Eliminate that reflection and you've got behavior that isn't always self-interested, and more likely to be sincere and trustworthy. The law has always recognized immediacy as a sign of truth. It takes time and reflection to lie. Also, according to the law, it takes a shock of some momentous occasion to elicit a spontaneous utterance. The Federal Rule of Evidence (Rule 803) on this matter prefers to call such things "excited" utterances, and defines them as "statements made to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition." In practice, this exception usually involves 911 calls or quick police responses where the victim is found hysterical, in great pain, frightened, and/or bleeding profusely, as with a domestic violence, battery, or rape incident. In such cases, the court will usually allow the police officer to testify on behalf of the victim, and such testimony is not considered hearsay, but "the event speaking and not the speaker" (Pennsylvania v. Zukauskas 1983). A spontaneous utterance doesn't even have to be verbal. A crowd can point out the perpetrator at a crime scene with their nonverbal behavior, or the victim's frantic behavior immediately after being victimized can be an indicator of whodunit. Police officers can also make excited utterances, and the recordings of radio communications between officers or between officers and dispatchers are sometimes admitted, as with all evidence of this type, without the party who actually made the statements ever having to take the stand. It is totally up to each judge's discretion as to how long the time interval ought to be before something ceases to be "spontaneous."
A Note on the Difference between Res Gestae and Spontaneous Utterance
|Res gestae (a Latin phrase meaning "things done") refers to a much broader class of evidence than spontaneous utterance. Res gestae includes such things as declarations of mental state and declarations of present sense impressions; e.g., "They must have been drunk because they passed me going 65 miles an hour" (Houston Oxygen Co. v. Davis 1942). By contrast, a spontaneous utterance is used primarily for descriptive context; e.g., "I'm crying because my uncle raped me." Res gestae usually goes to some crucial fact or element of the crime ("Stick em up") which is necessary to establish intent, planning, or premeditation. By contrast, spontaneous utterances usually go to some critical fact that is necessary to describe the unplanned excitement of the moment. Res gestae may not always be a startling affair and can occur much later after the fact ("That's the man who robbed me") while spontaneous utterances always involve a startling affair and have some immediacy in facts.|
(3) RES GESTAE OR PRESENT SENSE IMPRESSION -- This is not really an historical exception at common law, but 38 states recognize this exception to the hearsay rule (Waltz & Park 1999), and the federal counterpart is solely the "present sense impression" exception as the phrase "res gestae" is nowhere mentioned in the Federal Rules of Evidence. Where the res gestae exception exists, a party is allowed to admit evidence which consists of, among other things, everything said and done in the course of the incident or transaction that is the subject of the trial. The evidence admitted under res gestae can be hearsay or non-hearsay. For example, a firearm confiscated by police in the course of arresting a drug dealer can be taken as part of the usual transaction of drug dealing, or, to give another example, pornography confiscated from a child molester might be taken as inferring the victims were shown pornography. The idea of res gestae is that some words and conduct are so closely associated with an occurrence that they can be considered part of the "whole story" and as such their report does not violate the hearsay rule. A voir dire hearing is usually required before res gestae evidence can be admitted, and in order to spare the jury from being presented any prejudicial matter. There is a bit of variation in how different states and judges handle res gestae exceptions, and the modern trend is to use the less confusing "present sense impression" exception. A present sense impression is defined by FRE 803 as a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. The idea of a present sense impression is that some statements are made under such conditions or circumstances as to indicate the trustworthiness of the statement, for example, when all passengers in a vehicle or a crowd witness the same thing. Such declarations can be conclusory in form (I saw X say Y did it), but so long as they are contemporaneous and not the result of speculative hindsight by someone who has familiarized themselves with the case, they can be admitted as material evidence which does not invade the province of the jury. Although the federal rules don't require it, a few states require corroboration by witnesses who have had an opportunity to observe the same thing, say they heard the same thing, or can testify about the truthfulness of someone who recounts what they say they heard.
(4) ADMISSIONS AND DECLARATIONS AGAINST ONE'S INTERESTS -- These involve long-established common law exceptions to the hearsay rule, and consist of various types, of which admissions (acquiescing in the statement of another or remaining silent in the face of accusations) are a special type. It may be helpful to think of this category of exceptions as similar to the way police investigators go about obtaining admissions or "soft" confessions. There are two main types of declarations against interests -- against pecuniary interest and against penal interest. The rationale behind this group of exceptions is the legal system's confidence in the notion of "probability of truthfulness." When a person says or writes something that isn't exactly in their best interests, the legal system assumes that those statements probably would not have been made unless they were true. At least such statements would be trustworthy if corroborated by other facts, and FRE 804(b)(3), which governs this exception, requires some corroborating facts. For example, if an arson-for-profit case involves the testimony of a co-worker who says he heard the boss say "this place would be better off burnt down," and the boss denies ever saying this, the testimony of the co-worker would be admissible as hearsay if there were corroborating facts such as evidence that the business was doing badly. This is an example of declaration against pecuniary interest, since the co-worker might be held liable in civil court by the insurance company for their part in the arson-for-profit scheme. What is much more common, however, are declarations against penal interest, in which the hearsay witness is at risk of being charged as a co-conspirator to the crime. In fact, declarations against penal interest are so common that at least one commentator (Davenport 1972) has called this exception the "co-conspirator exception." A typical scenario runs like this -- a drug dealer (named Joe) is arrested in a passenger vehicle, and none of the fellow passengers are charged with anything, but later police questioning of the passengers reveals that one passenger says "I often allowed Joe to store stuff he said were drugs in a closet at my apartment." The law would look upon this storage of extra drugs as a critical fact, and force this passenger to testify as a turncoat witness, even if that passenger had the foresight to obtain immunity from prosecution. The passenger is clearly a co-conspirator, but their statement is not taken as a confession, only as a self-inculpatory declaration against penal interest in order for the prosecution to get at Joe. The prosecution can always try to prosecute the co-conspirator later, but it will not be able to rely upon the co-conspirator's statement alone since it was used as hearsay in another case, and doesn't qualify as a confession. It only qualifies as a statement to get at the truth in the context of the present case. It may be helpful to think of this as the law looking favorably upon "uncooperative" witnesses as opposed to "cooperative" witnesses because the law looks down on snitches, who voluntarily sell out their friends in order to save themselves. In order for the truth to come out, the law assumes everyone must face the real risk of a penal sanction. That's what a declaration against penal interest means -- that the truth comes out when you are forced to say things that risk getting you in trouble.
(5) BUSINESS AND PUBLIC RECORDS -- The law assumes that organizations and individuals create records for a reason, and have a vested interest in seeing that they are accurate. There are two ways to get such records admitted into evidence, either under the awkward authentication rule of documentary evidence, or under the business records exception to the hearsay rule. Most lawyers prefer the hearsay exception route, and it can be said this is the most expanding area of hearsay exceptions. All sorts of records can be admitted: school records, medical records, financial records, and computer records (to name a few). The absence of records can also be used to make hearsay inferences about the conduct of an organization or individual. About the only type of record that is excluded are police investigatory records where police have extracted second-hand information. Rap sheets and arrest records are, also, for the most part, excluded, especially in criminal trials where such evidence would be unfairly prejudicial. Previous conviction of a crime cannot be used as evidence in a subsequent criminal action, although a few states (like California) have evidence codes that allow admission of previous felonious behavior. Previous arrest records are widely used, however, in sentencing hearings and civil trials. To be admissible, hearsay records must follow the best evidence rule by being recorded in the normal course of doing business and at the time the business was conducted. Computer records best satisfy this rule, and the field of computer forensics has opened the door to a vast number of possibilities in this area.
THE RESIDUAL EXCEPTION
The above list of five (5) exceptions exhaust all that have been established as major common law exceptions, but there is a sixth (6th) one -- called the "catchall" rule, or the residual exception, which provides an important aspect of flexibility in evidence law. The catchall exception (really an exemption) once existed in two rules, Rule 803(24) and Rule 804(b)(5), and both were consolidated in 1997 into Rule 807 which permits the admission of a statement by an unavailable witness who does not fit into one of the specific hearsay exceptions. All a lawyer must do to is show that the statement goes to a material fact and has probative value in that no other such evidence can be found. Most jurisdictions use the residual exception sparingly, as its excessive use opens the door to the possibility of a miscarriage of justice. The residual exception actually makes reference to the "interests of justice," a vague notion that in itself is subject to some controversy. In its entirety, the rule reads as follows:
Rule 807 Residual Exception
|A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can cure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.|
EXCULPATORY STATEMENTS -- Under federal law (and an unknown number of states), a false alibi can come back to haunt you. Today, it is not uncommon for some cases to be tried in the media. Let's assume you or your defense team go on TV and make statements to the press which claim you are innocent of a crime and state some alleged facts (alibi) that turn out later to be false or untrue. In such situations, the jury will be instructed to consider your false media statements as circumstantial evidence of guilt.
FAMILY HISTORY OR PEDIGREE -- This is a rather old exception to the hearsay rule that involves statements about family history, such as marriage, descent, and relationships. The law isn't interested in things such as "Your great-aunt married her first cousin" or anything like that, but it is interested in many kinds of hearsay statements (even when the author is unknown) about your family that might be recorded on tombstones or in family bibles. Actually, any sort of family correspondence will do, as the purpose is frequently to establish one's reputation within a family rather than an overall family's reputation in the community.
FORMER TESTIMONY -- Sometimes, testimony can be taken from a former trial or proceeding and used in a subsequent trial. There is a difference of opinion on whether this can be done in a civil trial using testimony from a criminal trial (some states allow it, but others don't). There are also limits to the introduction of grand jury testimony by a witness who asserts their Fifth Amendment privilege at trial. The general rules are that there must be: (A) an inability to obtain any re-testimony by the witness; (B) the witness must have had the opportunity to be cross-examined when the original testimony was given; and (C) there must be an "identity of issues" which means that the witness is a party to the case, with some standing in the case, which makes their former testimony relevant. If a different conclusion is reached in the subsequent trial than the conclusion reached in the original trial, then no double jeopardy or collateral estoppel has occurred since the subsequent testimony was only offered as a piece of evidence, not as an indicator of guilt or innocence.
PAST RECOLLECTION RECORDED -- If a witness was to repeatedly say "I don't remember," the court might allow a variety of techniques, some bordering on hearsay, which afford the witness an opportunity to refresh their recollection by producing documents or other recordings that trigger an implanted memory. It is important to distinguish here between past recollection recorded and present recollection revived. Both methods involve refreshing memory, but the exception being discussed here relates to the more rigorous standards for introducing a physical piece of evidence (notes, memoranda, or things that the witness recorded themselves) which jogs the memory. The physical piece of evidence becomes the memory. In contrast, when a witness is refreshed in their present recollection (by hypnosis or some such method), what the witness then has to say becomes the memory. This exception typically involves a piece of paper, or document (like a business record) which speaks to the jury, and allows the hearsay contained within to have some inferential value.
PRIOR IDENTIFICATION -- In a rare legislative act, the United States Congress amended the FRE in 1975 to declare that nonsuggestive lineups, photographic arrays, and other procedures of pre-trial identification are NOT hearsay, and that prior, out-of-court identifications can count as substantive identifications at trial. The prior identification exception is only admissible, however, when the person who made the identification can be called to testify and subjected to cross-examination.
SOCIAL SCIENCE SURVEYS -- As a general rule, the law is highly suspicious of social science research findings, especially those that involve public opinion polls or surveys. The law is not supposed to, after all, be led by public opinion. Yet, there are times when it is absolutely necessary to draw upon scientifically-collected public opinion. Admissible hearsay in this regard might involve cases of libel, slander, or copyright infringement (e.g., Zippo Manufacturing v. Rogers Imports 1963) in which public opinion establishes whether or not consumers are confused by product labeling or look-alike products. The general rule is that such evidence can NOT be used to establish guilt or innocence in a case, but only for "secondary purposes" which means an inference can only be made about the state of mind of consumers. Opponents of social science in law (and there are many) frequently argue that admitting social science research is like admitting multiple hearsay. Proponents of social science in law argue that it is the same as any forensic science.
STATE OF MIND AND PHYSICAL CONDITION -- There are times when emotions, feelings, hunches, and intuitions can be admitted as evidence, if the person offering them is competent and the testimony supports a material fact. It is important to understand that this kind of evidence can ONLY be used to support a material fact, and it CANNOT be used to support other facts. State of mind exceptions are only used to make a point, and should not be confused with establishing the elements of mens rea for an offense. The two most common examples of this which occur in the legal system involve emotions of affection and states of drunkenness. In divorce or domestic cases, it is often the case that a credible witness is needed to make the point that the defendant "loved" or "hated" the plaintiff or victim. Normally, such testimony would be objected to as outright hearsay, but if backed up by corroborating facts (such as proof that the defendant did or did not buy them flowers), then it might be admissible hearsay under the state of mind exception. The law assumes feelings and conduct go hand in hand, even in the absence of speech. Sometimes, it treads over into what is often called "habit" or "character" evidence, as when it seems everyone in the community knows the defendant is the "town drunk" but there is little by way of any other proof to support this. Doctors and medical personnel are likewise allowed great flexibility in what they can say about a person, if they are testifying as a hearsay witness on matters of physical condition rather than as expert witnesses, and such matters might include things like bad eyesight, lack of self-care, unwillingness to follow instructions, or bad memory. Judges often have a difficult time explaining to the jury how to weigh such evidence, and the proper inferences that a jury can draw, but it is essential that jury instructions contain some guidelines when medical hearsay is involved. The most controversial practice in this area is the Hillmon doctrine (Mutual Life Insurance Co. v. Hillmon 145 U.S. 285 1892) which allows evidence of the state of mind of one defendant to be used in inferring the state of mind (or conduct) of another defendant.
TENDER YEARS -- When a juvenile is involved, say, a very young juvenile, as a victim of sexual assault, the law would not require the victim to testify. Instead, the doctor, medical personnel, paramedics, counselors, or whomever the victim talked to would be allowed to testify about the identity of the perpetrator and/or possible motives that can be implied from the hearsay. When personnel examine such a victim and extract such hearsay testimony, care must be taken to not be asking leading questions, and any information extracted must come from normal conversation in the course of providing medical treatment.
TREATISES AND PROFESSIONAL LITERATURE -- It is becoming more and more common these days to see lawyers holding up academic textbooks and other literature in court to make statements, amounting to hearsay, about what are established procedures in police science and so forth. Normally, the expert who wrote the book would be called to be cross-examined, but procedures like subpoena duces tecum compel the production of records such as this, and they are sometimes entered into evidence as a hearsay exception with the presumption that compelling the evidence produces the same degree of trustworthiness as if the expert testified directly. Somewhat more controversial is the practice of having experts testify-at-a-distance to various "hypotheticals" posed to them by one or both parties to a case.
Cornell's LII List of Hearsay Rules (801-807)
Jurist Evidence Guide
Peter Tiller's Dynamic Evidence Page
Selected 2003 Hearsay Cases and Exceptions
The Evidence Site
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Last updated: Aug 21, 2010
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
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