Hearsay is a statement from a witness without direct knowledge of the statement. Rather, the testimony is based on what others have said to the witness. The person who made the statement is the declarant.

Sometimes hearsay is referred to as "second-hand evidence" or "rumor." The hearsay rule means it's not admissible in court unless a hearsay rule exception applies. It's inadmissible unless the statement is one of the recognized exceptions.

There are two categories of exceptions. The first category is when it's immaterial if the declarant is available to testify. In the second, the declarant must be fully unavailable for the exception to apply. This article discusses the first category.

Declarant's Availability Immaterial

When this type of hearsay evidence is offered, it doesn't matter if the declarant is available to testify. This evidence is viewed as very reliable, so there's less concern the declarant isn't testifying. Some of the more common exceptions of this type include:

Present Sense Impressions and Excited Utterances

These types cover spontaneous statements about an event. They're reliable because they're close in time and about the event. The declarant has no time to think about what he says, and it's likely more objective and truthful. How "close in time" depends on the case.

The excited utterance exception is for statements triggered by a startling event. For example, Joe runs into a room when he hears George scream, "Mary shot Jane!" The shooting was stressful and striking, caused George's scream, and Joe could testify.

The present sense impression covers someone's sense about condition or what's happening in the moment. For example, Mary says to Joe, "This room is hot and humid," or "This bus is going very fast." Joe can testify about what Mary said.

State of Mind

This exception allows statements revealing the declarant's own state of mind when he spoke. This can include a person's intent to do something. Joe's statement, "I'm so mad I'm going to go punch that person," show his intent and falls within this exception.

Past Recollection Recorded

This exception applies when a witness looks at a document, but it doesn't refresh his memory. The witness needs firsthand knowledge of recorded event.

Here, the witness records the event at or near the time it happened, but can't recall the event even after reviewing the document. Or she doesn't remember making the entry, but is still sure the record's right. An example is when a witness writes an event in a journal, but may not recall making the entry, and/or her memory isn't refreshed. 

Business Records and Public Records

Business and public records can be admissible if certain requirements are met. Generally, the records must be kept in the ordinary course of the business. There's usually a duty to make the records, such as staff meeting minutes. The records must be trustworthy. The person keeping the records usually must testify as to their authenticity.

Questions for Your Attorney

  • What happens if the jury hears hearsay? Isn't it too late to do anything?
  • The judge told the jury to ignore a hearsay statement, but I think it was really harmful to my case. How do we know the jury will ignore it?
  • If my lawyer objected to a ruling on hearsay, can I bring up the issue on appeal?