Chapter 7 The Hearsay Rule

Chapter 7 The Hearsay Rule

1. Statement of the Rule

The Federal Rules define 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. " [ Fed. R. Evid. 801 (c) ] The rule against hearsay is probably the most important exclu­sionary rule of evidence. If a statement is hearsay, and no exception to the rule is applicable,the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] An out - of - court statement that incorporates other hearsay is known as" hearsay. " This type of statement is admissible only if each part of the statement falls within an exception to the hearsay rule. If one part of the statement is inadmissible, the entire statement is inadmissible.

1. Reason for Excluding Hearsay

The reason for excluding hearsay is that the adverse party was denied the opportunity to cross - examine the declarant ;i. e. ,the party had the chance to test the declarant’s perception (how well did he observe the event he purported to describe) ,his memory(did he really re­member the derails he related) ,his sincerity (was he deliberately falsifying) ,and his ability to relate(did he really mean to say what now appears to be thrust of his statement).

2. "Statement"

For purpose of the hearsay rule," statement" is(i)an oral or written assertion,or(ii)non­verbal conduct intended as an assertion. [ Fed. R. Evid. 801 (a) ]

1. Oral Statements

" Statement" includes oral statement(i. e. ,where the witness testifies that somebody said" •••").

2. Writings

Any written document that is offered in evidence constitutes a" statement" for hearsay pur­poses.

3. Writing

Conduct intended by the actor to be a substitute for words (e. g. ,the nod of the declarant’s head indicating yes)is a" statement" within the meaning.

4. Nonassertive Conduct

3. "Offered to Prove the Truth of the Matter"

This is the most crucial component of the hearsay rule. The basic reason for rejecting hear­say evidence is that a statement offered to prove that which it asserts is true may not be trust­worthy without the guarantees of cross - examination. However,where the out - of - court state­ment is introduced for any purpose other than to prove the truth of the matter asserted, there is need to cross - examine the declarant, and so the statement is not hearsay.

2. Statements That Are Nonhearsay under the Federal Rules

Federal Rule 801 (d)removes from the definition of hearsay certain statements that would be hearsay under the common law definition. Since the following types of statements are not hearsay , when relevant, they are admissible as substantive evidence.

1. Prior Statements by Witness

Certain statements by a person who testifies at the trial or hearing,and is subject to cross- examination about the statement, are not hearsay.

2. Admissions by Party - Opponent

Although traditionally an exception to the hearsay rule, an admission by a party - opponent is not hearsay at all under the Federal Rules. [ Fed. R. Evid. 801 (d)(2)] An admission is a statement made or act done that amounts to prior acknowledgment by one of the parties to an action of one of the relevant facts. If the party said or did something that now turns out to be in­consistent with his contentions at trial, the law simply regards him as estoppled from'preventing its admission into evidence. The party who made the prior statement can hardly complain about not having had the opportunity to cross - examine himself. He said it. He is struck with it. Let him explain it if he can.

III. Hearsay Exceptions—Declarant Unavailable

Certain kinds of hearsay are considered to have special guarantees of trustworthiness and are recognized exceptions to the hearsay exclusion. The Federal Rules treat the exceptions in two groups—those that require the declarant be unavailable, and those under which the declarant’s availability is immaterial. This section covers the five important exceptions requiring the declarant’s unavailability < (i) former testimony, (ii) statements against interest, (iii) dying declarations, (iv) statement of personal or family history,and(v) statements offered against par­ty procuring declarant’s unavailability.

1. Former Testimony

The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross - examine at the prior hearing was meaningful. [ Fed. R. Evid. 804 (b)(1)] This exception is the clearest example of hearsay with special guarantees of trustworthiness, since the former testimony was given during formal proceedings and under oath by a witness subject to cross - examination.

2. Statements against Interest

A Statement of a person, now unavailable as a witness, against that person’s pecuniary, pro­prietary , or penal interest when made, as well as collateral facts contained in the statement, is admissible under the statement against interest exception to the hearsay rule.

3. Dying Declarations—Statements under Belief of Impending Death

In a prosecution for homicide or a civil action,a declaration made by the now unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible. [ Fed. R. Evid. 804(b) (2) ] The de­clarant need not actually die,but he must be unavailable(see 1. supra)at the time the declara­tion is offered.

4. Statements of Personal or Family History

Statements concerning birth, marriage, divorce, death, relationship, etc. , are admissible un­der an exception to the hearsay rule. Hearsay statements concerning family history are often necessary to prove the facts of people’s everyday lives. For example,most people rely on the hearsay statement of others for knowledge of where they were bom, who their relatives are, etc.

5. Statements Offered against Party Procuring Declarant’s Unavailability

The statements of a person (now unavailable as a witness) are admissible when offered a­