One of the most complex and frequently disputed rules of evidence is the hearsay rule. It often plays a key role in both criminal and civil cases. The basic concept is that a statement made out of court to a witness cannot be used to establish the truth of the statement. This is because the opposing party does not have a chance to cross-examine the person who made the statement and test their credibility. The hearsay rule thus is meant to prevent juries from convicting defendants (or imposing civil liability) based on rumors and other secondhand evidence.
However, it is important to bear in mind that these types of statements may be admitted to prove something other than the truth of their content. An example of when this might happen is when the party introducing the statement is trying to show the state of mind of the person making it. For instance, a remark that someone is a drug dealer could not be introduced to show that they are a drug dealer, but it could be introduced to show that the speaker thought that they were a drug dealer if this is a relevant point to establish. Statements that do not contain facts also do not fall within the hearsay rule.
Exceptions to the Hearsay Rule
There is a long list of exceptions to the hearsay rule, but some examples include dying declarations and excited utterances. Courts traditionally (but perhaps inaccurately) believed that people would not lie on their deathbed for religious reasons, and someone who is dead cannot testify. To introduce this type of evidence, a party must show that the speaker knew that they were about to die. Meanwhile, people who are overcome by emotion will not be likely to lie if they blurt out an exclamation. The burden of proof again is on the party introducing the statement to show that the speaker was acting spontaneously because of strong emotions.
Common Hearsay Exceptions
Opposing party statements
Assertions of state of mind
Prior inconsistent statements
Business and government records
The contents of business records or public records also may fall within an exception to the hearsay rule. The records must have been made within the regular course of business by a person with knowledge of the matters contained. These sources are thought to be trustworthy and likely to be accurately maintained. In many cases, the records consist of data entered into computers.
Exceptions to the hearsay rule may be slightly different in different states, and exceptions in state courts may be different from exceptions in federal courts. One of the reasons to hire an attorney for a criminal trial is that they will be familiar with the specific evidentiary rules in the appropriate court.
The Confrontation Clause
A related right to the protection against hearsay evidence in criminal cases is the right to cross-examine witnesses under the Sixth Amendment. This is known as the Confrontation Clause right, and it prevents a party from introducing out-of-court statements when the person who made them cannot be cross-examined. This right often overlaps with the hearsay rule, and an evidentiary objection may be made on either basis. However, the Confrontation Clause can operate independently to prevent evidence from being admitted even if it falls within an exception to the hearsay rule.
Sixth Amendment Forfeiture
A defendant can forfeit the right to confront a witness when they engage in conduct designed to keep the witness from testifying. For example, Heather is expected to testify for the prosecution at Victoria’s embezzlement trial. The night before the trial begins, Victoria instructs her husband, Paul, to call Heather and tell her, “You better not testify at Victoria’s trial. If you do, we have ways to make you regret it.” Heather does not appear to testify, but her out-of-court statements may be introduced anyway. Victoria forfeited her right to confront Heather.