Objection: Hearsay! What Is the Hearsay Rule, and What are the Exceptions to It? by Mariah Wodjacz

Objection: Hearsay! What Is the Hearsay Rule, and What are the Exceptions to It?

Hearsay evidence is typically inadmissable in legal proceedings, but there are exceptions.

by Mariah Wodjacz
updated September 04, 2020 · 3 min read

Woman signing official documents

Broadly defined, "hearsay" is testimony or documents quoting people who are not present in court. When the person being quoted is not present, establishing credibility becomes impossible, as does cross-examination. As such, hearsay evidence is inadmissible.

Exceptions to the Hearsay Rule

As with any rule, there are exceptions, and the hearsay rule has plenty of them. Below you can find legal yet easy-to-understand explanations of some commonly-known—and misunderstood—exceptions to the hearsay rule.

Exception: Excited Utterance

An "excited utterance" is when someone makes a statement during the heat of the moment, possibly providing an unguarded, true piece of information. Most applicable in criminal cases, the rationale behind this exception is that during or immediately following a criminal act, a person is not likely to have the presence of mind to lie or give false statements.

It is not enough that a person may have been angry or upset—that is, excited—when he or she made the statement. In order to be a true impulsive utterance, the statement has to have been made in conjunction with some event that would be so overwhelming as to discount the possibility of fabrication. 

Exception: Statements Against Interest

Statements against interest, sometimes called admissions or confessions, are statements or actions which in some way adversely affect the divulging party. The confession doesn't need to be formal admission, such as a statement given to the police. Formal admissions are admissible as part of the public record.

The theory governing this exception is that a person would not fabricate a statement divergent to his or her own best interest. Of course, the witness offering the hearsay testimony may not be telling the truth, but that goes to credibility, not admissibility.

It is not uncommon for people to make statements against their interests in private settings. A teacher, for example, may confide to a friend that she suspects one of her students is the victim of abuse, but she does not want to report to the authorities because she fears she may be wrong. In most states, teachers are required by law to report any suspicion of abuse, regardless of the level of uncertainty. Failure to report may have serious consequences, and thus a teacher may refuse to testify so as not to self-incriminate. The testimony of the confidante, however, would be enough to have the teacher's suspicions entered into evidence.

Exception: Matter of Record

There are several ways to meet the matter of record standard for admissibility. Any properly-kept official government records are admissible, such as income tax returns and employment information. Private business records are also admissible, so long as a qualified witness can identify them and explain their maintenance or clarify their meaning.

Prior court decisions or documents should also be admissible, even when they reference witnesses who are not present. It is also possible to have the prior testimony of an unavailable witness admitted; however, the judge may not allow it in the absence of a transcript.

Generally, any official document—birth certificates, promissory notes, contracts, etc.—should be admissible so long as the document's accuracy can be verified in some way. If you need to present a document in court, provide the notarized original whenever possible. If the document was signed by a witness, subpoena that witness to testify to the document's authenticity. And if you need to refer to any documents from any other courts, make sure to have the file-stamped copy available.

Knowing when you can and cannot use hearsay evidence is crucial, especially is you are representing yourself in court as a pro se litigant. Not only will you have the ability to build a stronger case for yourself, you will also know when to object to the opposition's use of hearsay, and on what grounds.

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Mariah Wodjacz

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