Hearsay and Exceptions

a) What is Hearsay?

Hearsay evidence is normally excluded from trial because it is deemed untrustworthy. “Hearsay” is a statement other than one made by the witness testifying at the trial, offered in evidence to prove that the matter asserted in the statement is true. An example of hearsay is a witness testifying that he heard another person saying something about the facts of the case. The reason that hearsay is untrustworthy is because the opposing side has no way of testing the credibility of the out-of-court statement or the person who supposedly made the statement. Thus, for example, the following questions would be objectionable as “hearsay” if you are trying to prove that the color of the door was red:

“Mr. Edwards what color did Bob say the door was?”

This is hearsay. Mr. Edwards is using Bob’s statement for him to prove the color of the door. Instead, Bob or someone who saw the door needs to be called to testify as to the color of the door.

b) Reasons for Prohibiting Hearsay

Our legal system is designed to promote the discovery of truth in a fair way. One way to seeks to accomplish this goal is by ensuring that the evidence presented in court is “reliable”; that is, we can be fairly sure that the evidence is true. Hearsay evidence is said to be “unreliable” for four reasons:

i) The hearsay statement might be distorted or misinterpreted by the witness relating it in court.

ii) The hearsay statement is not made in court and is not made under oath.

iii) The hearsay statement is not made in court, and the person who made it cannot be observed by the judge or jury (this is important because the judge or jury should be allowed to observe a witness’ behavior and evaluate his/ her credibility).

iv) The hearsay statement is not made in court and the person who made it cannot be challenged by cross-examination.

c) When Can Hearsay Evidence Be Admitted?

Although hearsay is generally not admissible, there are certain out-of-court statements that are treated as not being hearsay, and there are out-of-court statements that are allowed into evidence as exceptions to the rule prohibiting hearsay.

Statements that are not hearsay are prior statements made by the witness himself and admissions made by a party opponent.

i) Exceptions

Hearsay is not admissible, except as provided by these rules. For purposes of this mock trial, the following exceptions to the hearsay rule will be allowed; even though the declarant is available as a witness.

(1) Spontaneous Statement

A statement describing or explaining an event o condition made while the declarant perceived the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.

(2) Excited Utterance

A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Medical Statements

Statements made for the purpose of medical diagnosis or treatment by a person seeking the diagnosis, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, in as far as reasonably pertinent to diagnosis or treatment.

(4) Recorded Recollection

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

(5) Records of a Regularly Conducted Activity

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, unless the source of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling for every kind, whether or not conducted for profit.

(b) No evidence in the form of an opinion or diagnosis is admissible under paragraph (a) unless such opinion or diagnosis would otherwise be admissible if the person whose opinion is recorded were to testify to the opinion directly.

(6) Learned Treatises

To the extent called to attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in public treaties, periodicals or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, or by other expert testimony, or by judicial notice.

(7) Then Existing Mental, Emotional, or Physical Condition

(a) A statement of the declarant’s state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

(i) Prove the declarant’s state of mind, emotion, or physical sensation at the time or at any other time when such state is an issue in the action.

(ii) Prove or explain acts of subsequent conduct of the declarant.

(b) However, this subsection does not make admissible:

(i) An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such a statement relates to the execution, revocation, identification, or terms of the declarant’s will.

(ii) A statement made under circumstances that indicate its lack of trustworthiness.