Objection: Hearsay! What is the hearsay rule, and what are the exceptions to it?

Objection: Hearsay! What is the hearsay rule, and what are the exceptions to it?

by Mariah Wodjacz, December 2009

We're all familiar with the scene. The fictional attorney on the courtroom drama objects on the grounds of hearsay; the opposing counsel shoots back by claiming excited utterance, and the judge gives a scripted response, deciding whether the testimony is admissible or not. During prime-time, this scene serves merely to thicken a plot, but if you are representing yourself in a real courtroom, understanding when to object on the grounds of hearsay and how to argue the various exceptions to the rule can make the difference between winning and losing.

Hearsay defined

 Broadly defined, "hearsay" is testimony or documents quoting people who are not present in court, and hearsay evidence is inadmissible for lack of a firsthand witness. When the person being quoted is not present, establishing credibility becomes impossible, as does cross-examination.

So, simply put, the hearsay rule says that secondhand testimony is not admissible in court.


As with any rule, there are exceptions, and the hearsay rule has plenty of them. If you are a pro se litigant, it is important to understand which kinds of hearsay evidence are admissible and which ones aren't. Remember: don't believe everything you see on TV. Below you can find legal yet easy to understand explanations of some commonly-known (and misunderstood) exceptions to the hearsay rule.

Exception:Excited Utterance

Here's where taking cues from Matlock might get you into trouble if you find yourself before a real-life judge. On television, this exception is often referred to as "excited utterance," and while some statutes do use that terminology, it can lead to a misunderstanding. Legally, hearsay statements may be admitted if they were made "res gestae" - in the "immediacy of things."

Most applicable in criminal cases, the rational 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.

Therefore, 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 which would so be so overwhelming as to discount the possibility of fabrication. While the event does not necessary have to be a criminal act, that is the circumstance under which the standard for admission can be most obviously satisfied.

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 need not be a formal admission, such as a statement given to police; formal admissions are admissible on face 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 if you are to argue effectively 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.

The exceptions discussed in this article are meant to give you an introduction;other exceptions and exemptions will be discussed in future articles. Remember, the more of them you know, the more opportunity you will have to present the testimony you want, and the more you will be able to object to testimony that you do not want admitted. So check back regularly for more explanations you can really use!