Hearsay Evidence?

As a tangential point in a Pit thread otherwise not connected with this question, Joe Cool repeated the old canard that “hearsay evidence is not admissible in court.” I’m aware that this is a generalization of a principle with almost as many exceptions as applicability, but when I went to refute that statement, I realized that I don’t understand the circumstances in which it is admissible and what the principles are for determining which is which.

So my question is, what’s the truth behind that statement, and what are the ground rules for the times when it is admissible? I’m not looking for a Federal-courts-and-50-state-systems law school monograph, but just a basic statement of its relevance to our judicial system as a whole – what a typical law school might answer to a reporter’s query about it for a story in a paper whose circulation area crosses state lines, for example.

I’ll try to simplify hearsay while maintaining accuracy…

Hearsay is inadmissible because it is unrealiable proof, and juries should not rely on unreliable proof when deciding a case.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Huh?

Example: Mary testifies that the light was red and that she knows this because Tom told her at the scene that the light was red. Mary does not have personal knowledge of the light because she didn’t see it. Tom is not in court to testify under oath or to be subjected to cross-examination about the status of the light, so his statement to Mary is unreliable and inadmissible hearsay offered to prove the truth of the matter asserted (i.e., that the light was in fact red).

If the statement is used to prove something other than the actual color of the light (e.g., that Tom can see), then it is not hearsay.

There are about 25 hearsay exceptions, but they are exceptions because, although the statement fits the definition of hearsay, the statement is reliable, so the jury should be able to consider it.

Some examples are:

  1. Admission by party opponent: If an opposing party to a lawsuit makes a damaging admission against himself, then that statement is reliable.

  2. Statement against interest: If someone says something damaging against himself, then that statement is reliable.

  3. Excited utterance: If someone suddenly shouts, “Oh my God, the light’s red!” then the fact that the speaker didn’t have time to formulate a thought before speaking makes the statement reliable.

  4. Dying declaration: A statement made on someone’s deathbed is considered reliable.

Google “hearsay exceptions” for a list. Some hearsay exceptions are only available if the declarant is unavailable to testify, so you will want to look for both “declarant unavailable” and “availability of declarant immaterial”.




There are others, but those are the basics without getting too technical.

The reason for the hearsay rule is that the person who makes the statement is not in court, not under oath and not subject to cross-examination, which are the traditional means of testing the truth of the statement.

Although the exceptions have emerged on a case-by-case basis, there is a common thread running through them: even though not in court and not subject to cross-examination, there are other reasons why they can be considered reliable. For example, an individual is not likely to say something against their own penal interest, like confess to a crime, so if they do so, that is considered a strong reason to rely on the statement.

That’s why the Canadian Supreme Court has moved steadily away from the “pigeon-hole” approach to hearsay, with a variety of exceptions for particular circumstances, and instead has created a general approach to hearsay: a hearsay statement may be admissible if there are substantial indicators of its reliability, and there is some element of exigency to the admission of the statement (e.g. - the person who made the statement is dead).

To be more precise, I would say the problem is not just the inherent unrelibaility of the evidence, but more importantly the fact that the jury is not in a position to judge the credibility of the declarant as they are when they’re watching him in the witness box being grilled by the opposing counsel. A quibble, but an important one, I think.


Stupid question: Why isn’t the statement from a jail-house snitch considered hearsay and therefore inadmissible?

Because the snitch is likely relating an admission made by the declarant, and an admission against penal interest is one of the exceptions to the hearsay rule.

Of course, the argument might be made that the snitch has a reason to fabricate the admission - but that goes to the weight of the testimony, not its admissibility.

  • Rick

It’s also worth pointing out that the reason evidence is offered is key to determining whether it’s hearsay at all.

The OP mentions the classic statement that hearsay is inadmissible. That’s generally true, although as we’ve read above, there are many exceptions to the general rule.

But an out of court statement is perfectly admissible if it’s NOT offered to show the truth of the matter asserted in the statement. That’s not an exception to the hearsay rule – it’s simply not hearsay.

Bill wishes to testify that Abe told him, “Charlie robbed a 7-11 last night and shot the clerk dead when she gave him trouble.” What’s the purpose of this evidence? If it’s to show that Charlie participated in robbing a 7-11 and committing murder, then it’s hearsay - it’s offered to prove the truth of the statement itself.

But suppose I offer this evidence at Bill’s trial - I want to show that he heard that Charlie robbed the store and shot the clerk, and, because the clerk was his sister, flew into a rage and beat Charlie to within an inch of his life. Now the statement isn’t offered to prove whether or not the store was actually robbed by Charlie - it’s offered to show why Bill flew into a rage. It’s no longer hearsay. We don’t care if the statement itself is true or not – just that it was said.

  • Rick

Hearsay is any assertion made by anyone other than a witness under oath testifying in court when the assertion is offered as proof of the matter asserted. A principal reason why hearsay is restricted in nations which base their laws on the English Common Law system is that the use of such evidence deprives the person affected of his right to confront and challenge the witness in court.
There are no general rules against hearsay in code law countries such as France or Japan. The nations which recognize hearsay as objectionable are in the minority. When the war crimes tribunal was convened after the conflict in Bosnia, the international judges had to improvise a system of civil procedure to use. Although there were judges and counsel from such nations as Great Britain and the United States involved, it was decided that hearsay would not be objectionable.

As noted above, there are, nonetheless, many instances of permissable hearsay. There is no exact list. An estimate I have heard given several times–both in law school and subsequently, while in practice–is that there are about thirty-five commonly used exceptions.

Some of the common ones:

1.) Statements in ancient documents.

For this purpose, “ancient” is often defined as 25 years old or older. The reasoning is that a person would not have the patience to get a lie printed in the newspaper and then wait 25 years to use it to help him perpetrate a hoax.

2.) Death bed statements.

This exception is very narrowly defined. The witness must have an apprehension of death; a cliche is that he must “hear the wings of the angel of death approaching”. Further, the assertion is accepted only if it is: (1) a confession as to something the person who knows he is dying did, or (2) a statement as to his knowledge of what caused him to be dying.


On his deathbed, A says that his brother murdered A’s wife. This is excluded as hearsay.

On his deathbed, A says that he murdered his wife.
This is permissable hearsay.

On his deathbed, A says that he robbed the First National Bank in 1966. This is acceptable hearsay.

On his deathbed, A says that he found the money hidden in his brother’s house and so knows he was the one who robbed the bank. This is excluded as hearsay.

On his deathbed, A says he intentionally took poison. This is acceptable hearsay.

3.) Basic facts about community reputation

“Everybody always referred to Caleb as ‘the town half-wit’”. This can be ruled as admissable.

4.) Basic facts of family history

“My grandparents were married in a church ceremony
in County Cork in 1904; I heard about it all the time as a child.” This can be ruled as admissable.

5.) Self-identifying marks

“How do you know the matchbook came from the St. Louis Hilton?” “Because it says ‘St. Louis Hilton’ right on it”. The writing on the matchbook is actually hearsay, but is acceptable.

6.) Excited utterances

“Jeez! That guy must have been going 90 when he hit that lady!” Made by a witness just after the collision, this would be acceptable hearsay.

7.) The behavior of animals and machines, as they do not know they are making assertions.

“What evidence do you have that the defendant reported to work late on the morning in question?” “It says 10:00 right here on his time clock card.” This “statement” by the time clock would be addmissable.

“What evidence do you have that the deceased even knew anyone named Ralph?” “She lived alone, and her parrot says “Thanks, Ralph…Ralph…Hi, Ralph”, all the time”. This would be admissable.

8.) Statements against personal interest.

“And then he said: ‘Gee, I guess I should have checked the gun to see if it was empty before I pulled the trigger’”. This would be admissable.

9.) Basic information about identity.

In his book Helter-Skelter, Manson prosecutor Vincent Bugliosi says that one of the defense attorneys at the trial had once objected to having a witness state what his name was. His reasoning was that man only knew what his name was because he had been told that at some time by his parents and so this was hearsay evidence.

He was correct, but courts don’t care. Similarly, you can state your address, even though you are relying on the statement of whoever put up the street sign near your house.

10.) Tombstone inscriptions.

As alluded to before, a statement that would otherwise be hearsay may be ruled to be non-hearsay because it is being offered as proof of something other than the matter asserted.

For instance, consider this real-life case:

There is a local television evangelist in St. Louis who is notorious for shooting his mouth off about subjects on which he has no training or knowledge whatever. For instance, during the Times Beach debacle he suddenly became an authority on dioxin. Some years ago he undertook an effort to get a convict released. There is, arguably, nothing wrong in that, but he took to discussing legal principles on air about which he had no understanding.

In the sentencing portion of the convict’s trial, character evidence was introduced to show that he had a wanton disregard for human life. Specifically, a former friend testified that he had boasted that he would cut his own grandmother’s heart out if there was money in it for him. The minister insisted this was hearsay and should have been excluded. Nope: the issue of statements against interest aside, this would only be construed as hearsay evidence if he were on trial for an attack on his grandmother.

Similarly, during the O.J. Simpson criminal trial, witnesses were able to testify that they had heard a patrolman say “nigger” on numerous occasions as this was character evidence to demonstrate that he was a racist. It would have been different if his use of the word “nigger” was offered as proof that someone was black.

The US Federal Rules of Evidence are also going this way (FRE Rule 807 (creating more of a “general” exception to the hearsay rule)).

Also, in California there are hearsay exceptions based upon the type of proceeding. Hearsay may be admitted in small claims court, administrative hearings, and child dependency proceedings for the child’s statements recounting sexual abuse. (Cal. Prac. Guide Civ. Trials & Ev. Ch. 8D-C).