What is Hearsay?
Hearsay and the hearsay exceptions are often misunderstood and misapplied, even by attorneys and judges. Attorneys who 1) understand them, and 2) can quickly cite the rule or case that supports their position, will always have an edge in the courtroom…
So, what is hearsay?
The layperson often believes it’s as simple as “you hear it, then you say it…,” and so believes that anything that was heard out of court is not admissible in a courtroom – it really is not that simple, though.
Below, we’ll go through:
- The definition of hearsay,
- Statements that are not hearsay (even though they sound like hearsay), and
- The hearsay exceptions found in the Rules of Evidence.
What is Hearsay?
Rule 801 of the SC Rules of Evidence defines hearsay as:
…a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
The “declarant” is the person who made the hearsay statement. A “statement” can be verbal or nonverbal:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
If the statement is not offered into evidence “to prove the truth of the matter asserted,” it is not hearsay. For example, if I ask a witness if Billy said he saw a knife in the defendant’s hand in a murder trial, that is probably hearsay.
If I ask Billy, in a slip and fall case, whether he heard someone say “there is a spill on aisle four” over the loudspeaker, it is not hearsay if the purpose for which I’m offering the statement is to prove that the store manager was on notice that there was a spill on aisle four. It doesn’t matter if there was actually a spill or not, because I’m offering the statement for the purpose of proving notice.
If you have a statement that might be hearsay that you want admitted (or want to exclude), don’t automatically go to the hearsay exceptions. First, consider whether the statement is hearsay at all:
- Is the statement a prior statement by the witness or an admission by the defendant (see below)? If so, it is not hearsay.
- Is the statement going to be offered for the truth of the matter asserted? If no, it is not hearsay.
- If yes, then look at the hearsay exceptions (below).
- Are there other rules that would exclude the statement (for example, it’s not relevant, it’s more prejudicial than probative, or there is another evidence rule that would exclude the statement)?
What is the hearsay rule?
The rule is: “Hearsay is not admissible except as provided by these rules…”
That “except” covers a lot of material, though – there are categories of out-of-court statements that the rules say are not hearsay, and then there are categories of hearsay statements that fall within one of the many hearsay exceptions.
What is Not Hearsay?
Two types of out-of-court statements that are not hearsay, and, therefore, don’t require an exception to be admissible, are prior statements by witnesses and admissions by party opponents.
Prior statements by witnesses – when the declarant testifies and is subject to cross-examination about a prior statement, the statement is not hearsay and is admissible if it is:
- Inconsistent with the witness’s testimony,
- Consistent with the witness’s testimony and is “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive,” if the statement was made “before the alleged fabrication, or before the alleged improper influence or motive arose,”
- A statement identifying a person that was made after seeing the person being identified, or
- Consistent with the alleged victim’s testimony in a CSC or attempted CSC case “where the declarant is the alleged victim and the statement is limited to the time and place of the incident.”
Admissions by a party-opponent – in the context of a criminal trial, statements are not hearsay and are admissible against the defendant if they are:
- A statement made by the defendant or their representative,
- A statement that the defendant has said he or she believed is true,
- A statement made by someone authorized by the defendant to make the statement (in a press release or interview, for example),
- A statement made by the defendant’s “agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,” or
- A statement made by a co-conspirator “during the course and in furtherance of the conspiracy.”
Not just any statement qualifies, though – it must be an “admission” that is offered against the party that made the statement.
What are the Hearsay Exceptions?
There are two categories of exceptions to the hearsay rule – 1) statements where it does not matter if the declarant is available to testify, and 2) statements where the declarant must be unavailable.
Hearsay Exceptions Where the Availability of the Declarant Doesn’t Matter
Whether the person who made the statement is available or not, the following types of hearsay statements are admissible:
- Present Sense Impression,
- Excited utterance,
- Then existing mental, emotional, or physical condition,
- Statements for purposes of medical diagnosis or treatment,
- Recorded recollection,
- Records of regularly conducted activity,
- The absence of an entry in records of regularly conducted activity,
- Public records and reports,
- Records of vital statistics,
- The absence of a public record or entry,
- Records of religious organizations,
- Marriage, baptismal, or similar certificates,
- Family records,
- Records of documents affecting an interest in property,
- Statements in records of documents affecting an interest in property,
- Statements in ancient documents,
- Market reports and commercial publications,
- Learned treatises,
- Reputation concerning personal or family history,
- Reputation concerning boundaries or general history,
- Reputation as to character,
- Judgment as to a previous conviction, and
- Judgment as to personal, family, or general history, or boundaries.
Note that these hearsay exceptions contain brief descriptions in the evidence rule linked to above, and there are volumes of case law that contain detailed descriptions of what does and what does not fall under each exception.
In short, a hearsay exception may not mean what you think it means based on its name. If you intend to use one in court (or need to exclude a hearsay statement), it requires research and study to understand 1) whether it applies to the specific statement you intend to introduce in court and 2) how and when to introduce the statement in court.
Hearsay Exceptions Where the Declarant Must be Unavailable
There are four types of hearsay statements that are admissible only if the person who made the statement is unavailable to testify. These include:
- Former testimony given under oath if the person against whom the statement is offered had the opportunity to cross-examine the person who made the statement,
- A statement under belief of impending death when the statement 1) is in a homicide prosecution and 2) concerns the circumstances of the person’s death,
- A statement against interest that would have subjected the declarant to criminal or civil liability, and
- A statement of personal or family history.
Like all hearsay exceptions, there are evidence rules, appellate opinions, and treatises that explain what each exception means, when they are admissible, and how and when you can introduce the statement in court, and the hearsay exception may not mean what you think it means if you have not done further research…
What does “unavailable” mean?
A witness is unavailable if they:
- Cannot or will not testify based on a privilege (attorney-client privilege, marital privilege, or priest-penitent privilege, for example),
- Refuse to testify even when the court orders them to,
- Claim they do not remember anything,
- Are dead or cannot be present due to physical or mental illness, or
- Cannot be located and subpoenaed to court.
If a witness is unavailable because they cannot be located, you should 1) document your attempts to locate and serve the witness with a subpoena and 2) be prepared to prove to the court that you attempted to locate and serve the witness with a subpoena.
Criminal Defense Lawyer in Charleston, SC
Charleston criminal defense lawyer Grant B. Smaldone focuses on criminal defense cases and criminal trials – studying and understanding the Rules of Evidence including the hearsay rule and the hearsay exceptions is a routine part of our law practice.
If you have been charged with a crime in the Charleston area, call SC criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.