“Hearsay” is a term that refers to testimony or written materials that quote persons who are not physically present in court. Establishing credibility and conducting a cross-examination are both rendered impossible when the individual being cited is not present. Hearsay testimony is thus not admissible.
Exceptions to the hearsay rule
There are always exceptions to every rule, and the hearsay rule is no exception. The legal but clear explanations of a few well-known—and frequently misunderstood—exceptions to the hearsay rule are provided here.
Exception: Excited utterance
An “excited utterance” is a remark made in the heat of the moment that could include an unguarded, accurate nugget of knowledge. This exemption is most frequently used in criminal situations since it is unlikely that someone would have the mental clarity to lie or make false statements while or just after committing a crime.
It is insufficient that someone may have been irate or upset—that is, excited—at the time the comment was uttered. The statement must have been uttered in combination with some incident that would be so overpowering as to rule out the possibility of fabrication in order to qualify as a real spontaneous utterance.
Exception: Statements against interest
Statements or acts that negatively impact the party disclosing them are known as statements against interest, often known as admissions or confessions. No official acknowledgment, such as a statement provided to the police, is required to validate the confession. Admissions made formally are acceptable and become part of the public record.
This exemption is justified by the idea that no one would create information that is contrary to their own interests. Of course, it’s possible that the witness providing the hearsay testimony is lying, but believability, not admissibility, is what matters here.
In private situations, it’s normal for people to say things that go against their interests. For instance, a teacher could confide in a friend that she thinks one of her pupils is being abused but she is hesitant to tell the authorities because she worries she might be mistaken. Regardless of the degree of ambiguity, instructors are obligated by law in the majority of states to report any suspect of abuse. A teacher could decline to testify in order to avoid implicating themselves in the case since failing to report could have significant repercussions. However, the confidant’s testimony alone would be sufficient to prove the teacher’s concerns.
Exception: Matter of record
There are several methods for satisfying the matter of record requirement for admission. Any properly maintained official government records, including income tax returns and employment data, are admissible. Private company records are also admissible if they can be located, their upkeep explained, or their intent explained by a qualified witness.
Even when they refer to witnesses who are not present, previous court rulings or documents should still be admissible. It is also feasible to have an unavailable witness’s past testimony included, however the court might not agree if there isn’t a transcript.
In general, any official document—birth certificates, contracts, promissory notes, etc.—should be acceptable as long as its accuracy can be independently confirmed. Whenever feasible, produce the original document that has been notarized if you need to present it in court. Subpoena the witness who signed the paper if they have any knowledge of its legitimacy. And be sure to have the file-stamped copy on hand if you need to refer to any records from any other courts.
It’s important to understand when you may and cannot utilize hearsay evidence, especially if you’re a pro se litigant (representing oneself in court on your own behalf). You’ll be able to present a better case for yourself and be aware of when and why to challenge the use of hearsay by the opposing.