You are not logged in. Please Login for track your learning progress
Bookmark this Note
Note ID: 119
Hearsay rule
If you want to share the link of this note, please click here to "Copy note link" and share that generated link. Link from URL may change in future.
According to the U.S. Courts, hearsay is a statement that is offered in evidence to prove the truth of the matter, other than one made by the declarant while testifying at the trial or hearing. Rule 802 is the rule against hearsay in the Federal Rules of Evidence. It states that hearsay is not admissible unless:
A federal statute provides otherwise
These rules provide otherwise
Other rules prescribed by the Supreme Court provide otherwise
Hearsay rule is the rule prohibiting hearsay (out of court statements offered as proof of that statement) from being admitted as evidence because of the inability of the other party to cross-examine the maker of the statement.
The Federal Rules of Evidence (FRE) contain nearly thirty exceptions to the hearsay rule. Rule 803 is a federal rule of evidence that covers exceptions to the rule against hearsay. It states that the hearsay rule does not exclude certain kinds of statements regardless of whether the declarant is available to testify Some examples of these exceptions include:
· Present-sense impression: A statement about what the declarant perceived when it describes or explains an event or condition and was made during the event or immediately after it
· Excited utterances
· Declarations of present state
· Admissions and declarations against interest
· Dying declarations
· Documents made in the regular course of business
· Prior inconsistent statements
· Statements about mental or physical state
· Spontaneous or contemporaneous statements
· Statements by children or victims of elder abuse
· Reputation evidence
Rule 804 defines what hearsay statements are admissible in evidence if the declarant is unavailable as a witness. The Senate amendments make four changes in the rule. Subsection (a) defines the term “unavailability as a witness”. A declarant is considered unavailable if they:
Are exempt from testifying about the subject matter of their statement because of a court-ruled privilege
Refuse to testify about the subject matter despite a court order
Testify that they don‘t remember the subject matter
Can‘t be present or testify at the trial or hearing because of death or infirmity
The
Exceptions. The following are not excluded by the rule against hearsay
if the declarant is unavailable as a witness:
(1)Former Testimony.
(2)Statement Under the Belief of Imminent Death.
(3)Statement Against Interest.
(4)Statement of Personal or Family History.
(5) [Other Exceptions.] [Transferred
to Rule 807.]
(6)Statement Offered Against a Party That Wrongfully Caused the Declarant’s
Unavailability.
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant‘s credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
