Tackling the most important topics of law school, Part 5: When is it hearsay, and when is hearsay okay?

August 29, 2013

Law School 101a(Editor’s note: Over the next ten weeks, we’ll be covering some of the most prominent legal concepts taught in law school to help students faced with these topics, whether for the first time or as part of a review, better comprehend them.)

Last week’s topic was legal writing and IRAC, a topic relevant both in law school and in the actual practice of law.

This week, we cover another topic that is also relevant in the practice of law: hearsay.

Hearsay, in the legal sense, refers to a specific type of evidence presented in court.  If evidence is determined to be hearsay, it is generally not admissible, although there are a large variety of exceptions to that rule

According to the Federal Rules of Evidence, evidence is “hearsay” when it 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 definition can thankfully be broken down into a three part analysis:

Evidence is hearsay if it is:

  1. A statement that is an assertion of fact,
  2. Made by a declarant outside of court, and
  3. Offered in court to prove the fact asserted,

Each of those elements should get their own explanation, too.

The first element seems fairly understandable, but it’s also important to note that the statement may be verbal, nonverbal, or written – meaning, documents, records, and audio and video recordings can be hearsay.  We’ll touch on this a little more later, but for now, it’s important to keep in mind that things like bank and medical records – along with video surveillance – can all be hearsay.

The second element also seems straightforward: the statement of fact was made outside of the courtroom in which the present proceeding is taking place (although it’s not automatically considered hearsay, testimony from previous court proceedings are considered “out of court” statements).

It’s also important to note that statements made by the individual currently on the witness stand can be considered “out of court” if the witness is recounting statements made outside of court (whether the statement is considered hearsay is dependant both on the other two factors, and whether it can come in under any of the number of exceptions to the rule).

The final element is the most complex, yet the most pivotal to determining whether evidence is hearsay.

If something is being “offered to prove the matter asserted,” that means that it is being offered as evidence of what is being stated.

For example: “The traffic light was green.”

That is a statement that is being offered to prove that the light was, in fact, green.

Whether that statement is hearsay is dependent on who said it and where (i.e. the other two elements).

If, for example, the statement was made by Witness A, but Witness B testifies in court that “Witness A stated that the traffic light was green,” that’s classic hearsay.  It’s a statement of fact made by an out of court declarant offered to prove the truth of the matter asserted.

As mentioned earlier, there are a variety of exceptions to the hearsay exclusionary rule.

I can’t get into all of them in detail, but here’s a chart that describes most of them along with the relevant Federal Rule of Evidence:

Exception FRE Rule Explanation/Examples
Present sense impression 803(1) Statement describing event or condition, made at the time or immediately thereafter
Excited utterance 803(2) Statement about sudden occurrence, made while declarant under stress of excitement of event
Then existing mental, emotional, or physical condition 803(3) Statement about declarant’s state of mind, emotions, or other feelings; ex: “Ouch! My head!”
Statement made for medical diagnosis or treatment 803(4) Statement made in the course of seeking medical treatment or a diagnosis; ex: To a doctor: “I was shot an hour ago”
Recorded recollection 803(5) Statement on a matter once known by the witness, but now cannot be recalled well enough; must have been made when fresh in witness’ mind
Business records 803(6) Records kept in regular course of business; regular practice to keep such records. Ex: mobile carrier’s phone records
Public records 803(8) Similar to business records exception
Public records of vital statistics 803(9) Records of birth, death, and marriage; must be regularly kept in the same way as business records would
Records of religious organizations concerning personal or family history 803(11) Statement from religious organization about one’s birth, ancestry, marriage, divorce, death, etc
Certificates of marriage, baptism, or similar ceremonies 803(12) Related to 803(11)
Reputation evidence 803(19), (20), and (21) Concerning personal or family history, history of an area, or reputation
Declarant unavailable 804 Several types of statements admissible under certain circumstances when the original declarant is unavailable to testify


For a complete list of exceptions, check out FRE Rules 803, 804, and 807.

There are also “exemptions” to the rule – categories of statements that are specifically exempted from the definition of hearsay.  They are listed at FRE Rule 801(d), but they fall under either two categories: admission by a party opponent and prior statement by a witness.  For more details on these, check out Rule 801 linked above.

As usual, there’s quite a bit more to this subject than I can get into here, but hopefully this post has been helpful to understanding the basic principles behind hearsay.

If you have any specific questions about hearsay, feel free to post them in the comments below!