The hearsay rule is a fundamental rule of evidence: a witness may generally testify only to facts of their own personal knowledge, and a statement made by a person other than the witness, offered to prove the truth of the matter asserted, is hearsay and generally inadmissible. The rationale is that hearsay cannot be tested by cross-examination of the original declarant, and its reliability cannot be assured. However, the rules recognize many exceptions where an out-of-court statement is admissible despite being hearsay, because of circumstances that provide a guarantee of trustworthiness. These include, among others: a dying declaration (a statement by a dying person about the cause and circumstances of their impending death); a declaration against interest; statements forming part of the res gestae (spontaneous statements made during or immediately after a startling occurrence); entries in the course of business (business records made in the regular course of business); official records; a declaration about pedigree or family history; and prior testimony of an unavailable witness. It is also important to distinguish independently relevant statements: a statement offered not to prove its truth but only to prove that it was made (for example, to show a person's state of mind or that notice was given) is not hearsay at all. Understanding the hearsay rule and its exceptions is central to what evidence a court will accept.
The Rule
A witness may testify only to facts of their own personal knowledge. A statement by another, offered to prove its truth, is hearsay and generally inadmissible — because it cannot be tested by cross-examination.
The Exceptions
- A dying declaration;
- A declaration against interest;
- Statements part of the res gestae (spontaneous, during a startling event);
- Business records and official records; and
- Declarations about pedigree/family history and prior testimony of an unavailable witness.
Independently Relevant Statements
A statement offered not to prove its truth but only that it was made (e.g., to show state of mind or that notice was given) is not hearsay at all.
Practical Takeaways
- Out-of-court statements offered for their truth are generally inadmissible hearsay;
- Many exceptions (dying declaration, res gestae, business records) apply;
- A statement offered only to show it was made is not hearsay.
Frequently Asked Questions
What is the hearsay rule? That a statement made by a person other than the witness, offered to prove the truth of the matter asserted, is hearsay and generally inadmissible, because it cannot be tested by cross-examination of the original declarant.
What are exceptions to the hearsay rule? Among others, dying declarations, declarations against interest, statements part of the res gestae, entries in the course of business, official records, declarations about pedigree, and prior testimony of an unavailable witness.
Is every out-of-court statement hearsay? No. A statement offered not to prove its truth but only to prove that it was made, such as to show a person's state of mind or that notice was given, is an independently relevant statement and not hearsay.
Why is hearsay generally inadmissible? Because the reliability of an out-of-court statement cannot be tested through cross-examination of the person who made it, so its trustworthiness cannot be assured.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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