Everyone is familiar with the term hearsay, and many people understand the fact that hearsay is not admissible in court. See CRE 802. However, there are many exceptions where hearsay statements are admissible in a criminal trial.
Hearsay is a statement made by some other person besides the person who is testifying in court and the statement is used to prove the truth of the matter asserted. See CRE 801(c). What does that mean? Imagine a person, Bob, is testifying in court. Bob says, “I heard John say, ‘I shot Sally.’” Now if Ethan, the defendant, wants to introduce that statement to prove that John did in fact shoot Sally, the statement would be inadmissible because Ethan is introducing that statement to prove that John shot Sally (the truth of the matter asserted). However, if Ethan is accused of shooting Sally, Ethan can introduce the statement to show that he didn’t shoot Sally. In this case, Ethan does not need the statement to be true, i.e. that John shot Sally. Ethan doesn’t care who shot Sally, the simple fact that the statement was made makes it less likely that Ethan shot Sally. This is the first, and most creative, way to admit hearsay evidence.
Next, there are a number of statements that the law does not consider hearsay at all, even if they technically are. If someone is testifying at a trial and a previous statement is not the same as the statement they’re giving, the previous statement is admissible and not considered hearsay. See CRE 801(d)(1). The same is true of a previous statement that is the same as the person testifying is giving if the opposing party has called into question the credibility of the witness (called them a liar). See id. Next, party admissions when offered by the opposing party are admissible and not considered hearsay. See CRE 801(d)(2). Imagine Bob rear ends Sally. Bob gets out of his car and says to Sally, “I’m sorry. This is all my fault.” If Sally later sues Bob for negligence, Sally can introduce Bob’s statement as evidence that Bob was at fault for the accident.
Next, there are a number of exceptions to hearsay. We will explore some of the most commonly used. First, excited utterances are admissible over a hearsay objection. See CRE 803(2). An excited utterance is a statement about a startling event made while the person making the statement was still under the stress from the startling event. See id. If Ethan saw Bob rear end Sally and said, “Wow Bob was speeding,” Ethan’s statement may be admissible as an excited utterance because the statement is about a startling event, the accident, made while Ethan was still under the stress of seeing the accident.
Next, present sense impressions are admissible over a hearsay objection. See CRE 803(1). A present sense impression is a statement describing an event or condition made while the person making the statement is perceiving the event or condition. See id. For example, John is sitting in his office across the street from a bank on the phone with Ethan and says, “I’m watching Bob walk into the bank across the street with a gun in his hands,” while Bob is actually walking into the bank with a gun. In this case, John’s statement can be introduced through Ethan as a present sense impression at a trial against Bob for robbery.
Next, statements made for the purpose of medical diagnosis are admissible. See CRE 803(4). These statements don’t have to be made to a doctor but typically have to be about symptoms, pain, or something pertinent to the diagnosis, not the cause. For example, after Bob rear ended Sally, if Sally goes to the hospital and tells a nurse that her “back hurts from being rear ended by Bob,” Sally can later introduce that statement, even though it is hearsay, as evidence that her back was injured. However, the statement about the cause of the pain (being rear ended by Bob) may not be admissible unless it was pertinent to Sally’s diagnosis. The fact that Sally was in a car accident is likely reasonably pertinent to her diagnosis but who rear ended her is not.
Next, many records are admissible over hearsay objections. Records kept in the course of business are typically admissible. See CRE 803(6). However, if the records contain additional hearsay statements in them, those statements may be inadmissible without another hearsay exception. Public records are typically admissible. See CRE 803(8). Even the absence of a public record can be admissible in some cases. See CRE 803(10).
Finally, there a few exceptions that require the person making the statement to be unavailable. Unavailable means a witness not present and the person offering the statement made efforts to get the witness to the trial or hearing, a witness that refuses to testify, a witness that asserts a privilege to testify, a witness that testifies that they can’t remember, and a witness that is unavailable due to death or mental incapacity. See CRE 804(a). The most common exceptions used here are former testimony and statements against interest. Former testimony is admissible if the witness is unavailable and testified at a past hearing or deposition and the opposing party had an opportunity to cross examine the witness at the past hearing or deposition. See CRE 804(b)(1). Statement against interest is when a witness that is now unavailable made a statement that is against their proprietary or pecuniary interest or subjected the witness to civil or criminal liability and, if offered in a criminal case, is supported by corroborating evidence. See CRE 804(b)(3). Think back to John’s statement to Bob that John had “shot Sally.” If Ethan is on trial for shooting Sally and John is unavailable, Ethan could attempt to introduce John’s statement through Bob as a statement against interest. However, without some corroborating evidence, the statement would still be inadmissible. But, if Bob also testified that John had a gun in his hand when he made the statement, that would likely serve as enough corroborating evidence to admit the statement.
You may be frustrated because of a pending case against you where you feel the only evidence is hearsay. Remember, there are many exceptions to the hearsay rule. You should speak with a trained attorney to identify whether the evidence against you will be admissible at trial or not.
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