Hearsay Evidence

The term “hearsay” refers to an out-of-court statement made by someone other than the witness reporting it. For example, while testifying in John’s murder trial, Anthony states that John’s best friend told him that John had killed the victim. Anthony did not hear John make the admission firsthand, making testimony of this statement “hearsay.” To explore this concept, consider the following hearsay definition.

Definition of Hearsay


  1. Testimony based on what a witness has heard from another person, of which he has no personal knowledge or experience.
  2. Unverified information acquired from another person, which is not part of one’s own knowledge.


1525-1535  Translated from Middle French par ouïr dire (hear say)

Validity and Use of Hearsay Evidence

The question of whether a statement is hearsay or substantiation of some relevant fact can be determined by deciding whether the parties involved care whether the statement is true or false. For example, a man named James stumbles out of a burning building and says to a witness “Andrew started the fire!” Both the prosecution and the defense care whether Andrew started the fire, making the witness’s testimony of James’ statement hearsay. Because of the hearsay rule, the witness’s testimony could not be used as proof that the fire was started by Andrew, but it could be used as proof that James was alive and able to speak after the fire, or that he had been in the building while the fire was burning (if the witness saw him come out).

As another example, if Jane overheard Bill calling Fred a liar, Fred’s lawyer could ask Jane to restate what Bill said – not to prove that Freed is a liar – but to show that Bill does not like Fred, or that he has a poor opinion of him. Such statements can also be used to show a person’s state of mind in a particular situation.

Double Hearsay

Double hearsay is an out of court statement that contains another hearsay statement. For example, John testifies that Rob’s brother told him that Maryann said that Rob had killed the victim. Double hearsay statements are generally considered to be so far from the source that they are unlikely to be admitted even as proof of an alternate fact.

The Rule of Hearsay in Court

In general, hearsay is excluded from all court cases. This is primarily because hearsay is considered to be unreliable information that cannot be verified by direct cross-examination of the person purporting to have direct knowledge. Rejecting hearsay information furthers the goal of the judicial system to not convict or set people free based on mistaken or falsified information

Exceptions to the Hearsay Rule

There are two main articles with it comes to hearsay exceptions: (1) when the declarant is unavailable, and (2) when the availability of the declarant does not matter.

Exceptions When the Declarant is Unavailable

  • Declaration against interest – a statement that would only incriminate the witness so it can be reasonably assumed that the statement is true, or the witness would not have stated it.
  • Dying declaration – a person’s last words before dying may be admitted in some cases.

When the Availability of the Declarant Does not Matter

  • Excited utterance – a statement made in immediate response to a shocking or startling event.
  • Present sense impression – a spontaneous statement that communicates the declarant’s sense of the condition of something, or the state of an event. Such a statement must be made during or immediately following the event.
  • Declarations of Present State of Mind – a statement of the declarant’s “present state of mind” at the time of the event may be admissible as proof of the declarant’s intent.

The Catchall Rule

The rules of hearsay evidence leave a number of situations to the discretion of the court. Simply put, the catchall rule does not require proof that the witness is unable to testify if the hearsay evidence meets certain conditions:

  • It has a sound element of trustworthiness
  • It is used to help prove materials facts
  • It more adequately answers a question than other reasonably obtainable evidence
  • The admission of the hearsay evidence will advance the cause of justice
  • Other parties in the case have been notified that the hearsay will be offered into evidence

Exclusions to the Hearsay Rule

There are two types of statements that are not considered hearsay according to the Federal Rules of Evidence. This includes (1) admission by a party-opponent and (2) prior statement of a witness.

Admission by a Party-Opponent

This type of statement is one made against the opposing party and it is excluded from the hearsay rule if it meets at least one of five requirements:

  1. The statement is the declarant’s own statement in an individual capacity.
  2. The statement is an adoption of a belief that it is true.
  3. The statement was made by a person with the authorization to make it.
  4. The statement was made by the party’s agent and it concerned a matter that falls within the scope of the agency or employment during the relationship.
  5. The statement was made by a co-conspirator with the party against whom the testimony is offered, and the statement was in the advancement or carrying-out of their plan.

Prior Statement of a Witness

A statement made by a witness at a prior time is not considered hearsay if the person who made the statement is currently testifying, can be cross-examined, and the statement meets one of the following:

  • The prior statement was made under oath at a previous proceeding, and is inconsistent with the declarant’s current statement.
  • The statement made at a prior time is consistent with the current testimony and is offered in order to disprove claims that the declarant had fabricated a statement.
  • The prior statement was an identification of a person made after becoming aware of that person

Hearsay and Documents

While the law considers some documents as hearsay evidence, Federal Rule 902 specifically allows refers the use of self-authenticating documents with no requirement for additional proof that the documents are genuine. Such documents include:

  1. Domestic public documents that have been signed and sealed
  2. Domestic public documents that have not been sealed, but that bear a public officer’s signature
  3. Foreign public documents
  4. Copies of certified public records
  5. Official publications
  6. Newspapers
  7. Certified foreign records of regular activity
  8. Presumptions under acts of congress

Hearsay and the Confrontation Clause

In criminal court cases, the Sixth Amendment outlines the Confrontation Clause, which goes hand-in-hand with the hearsay rule to exclude out-of-court statements from court proceedings. This clause assures the defendant’s right to face and cross-examine witnesses who make statements against them. For example, if Chloe tells the police that Jim had waved a gun at her when she parked near his car, the police officer could only testify to Chloe’s statement if Jim or his attorney has had the opportunity to cross-examine Chloe regarding the statement.

Landmark Hearsay Cases

The rules governing whether certain hearsay evidence may be admitted at trial are continually changing to meet the needs of a complex society. In both the Supreme Court and legislative initiatives, a variety of testimonial issues is addressed.

Giles v California

In the 2008, the Supreme Court case of Giles v California, the question of hearsay evidence of domestic violence in the case of the murder of Brenda Avie by her ex-boyfriend Dwayne Giles was considered. Giles claimed during trial that he had acted out of self defense. The trial court had allowed police officers to testify that Avie had made statements to them prior to her death claiming Giles had threatened her.

While Giles would otherwise have had the right to confront Avie and cross-examine her about her statements, the Supreme Court ruled that he had forfeited that right when he had intentionally made the witness unavailable for trial. Concurring opinions filed by Justices Thomas and Alito pointed out that Avie’s domestic violence report was not testimonial, and would not have been barred by the confrontation clause.

State of Colorado v Ennio Daniel

Colorado is one of the first states to add an exception to the hearsay rule for victimized developmentally disabled adults that is similar to the protection already provided for victimized children. In the 2011 trial of 51-year old Ennio Daniel it was brought out that he had invited a 25-year old woman with Down syndrome to lunch and a movie. She evidently was led to believe other co-workers would be present. Daniel instead drove the woman to a friend’s house where he held and raped her several times throughout the day.

Trials involving a victim with developmental disabilities are difficult, as the victim may be ineffective in communicating from the witness stand, and intimidated by facing the perpetrator and others in the courtroom. This case involved the first use of Colorado’s new hearsay law, enabling the victim to testify in a private room before a video camera, her testimony helping convict Daniel of two counts of sexual assault on an at-risk adult, and one count of kidnapping.

Related Legal Terms and Issues

  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Witness – A person who sees something, such as a crime or accident, taking place.
  • Declarant – A person making a declaration or statement, usually in relation to a legal proceeding.
  • Material Fact – A fact that a reasonable person would conclude is pertinent to the decision to be made, or which, if left out, would reasonably result in a different decision being made.
  • Cross Examination – To question a person or witness who has already been questioned by the opposing side regarding answers or information previously given.
  • Developmentally Disabled Adult – An adult person suffering from a chronic mental or physical impairment that affects his/her life in key areas such as learning, language, self-help, independent living, and mobility.