Hearsay is testimony based on what others have said to the witness, rather than witnessed first-hand. Sometimes, hearsay is referred to as "second-hand evidence" or "rumor." The hearsay rule says this evidence isn't admissible at trial unless an exception applies.

The person making the statement is called the declarant. There are two exceptions to hearsay. One doesn't require the declarant to be available, and in the second, the declarant must be unavailable.

This article is about the second category. 
 

Hearsay Exceptions - Declarant Unavailable

Some exceptions require the declarant to be unavailable to testify. This can include many reasons. Death is the most clear-cut example.

Unavailability results from illness or disability, too. Illness could be mental or physical. Lastly, someone might just refuse to testify.

This hearsay exception allows you to use evidence from other sources. Some example sources include:

Prior Reported Testimony

Prior testimony is admitted because it comes out of another legal proceeding. It's trusted because it was made under oath, and there was the chance to question, or cross-examine the declarant.

Dying Declarations

What someone says before dying may be a hearsay exception. A declarant's statement qualifies if he said it, believing death was imminent, and he actually died. He must have been sane.

Finally, the statement must relate to the circumstances leading to his death. For example, a police officer finds Joe, shot and bleeding, and he says, "Mary shot me." The officer can testify about Joe's dying words.

Declarations against Penal Interest

This exception makes hearsay admissible because the declarant says something at criminal risk to herself. A normal person wouldn't say such a thing if it wasn't true, knowing there could be criminal consequences - it's "against penal interest."

For example, John's on trial for drug crimes. He uses this exception to show Mary's letter to Jane saying the drugs were hers. Mary refused to testify, so she's unavailable. Mary wouldn't have written the letter, saying such things about herself if it weren't true, knowing it could get her in trouble.

Questions for Your Attorney

  • If hearsay is heard by the jury, how is that excluded from the trial?
  • What can be done if the jury hears inadmissible evidence and it hurts my defense?
  • Is a court's denial of an objection to hearsay evidence subject to appeal?