The rule against “hearsay” says that a person can not testify to something that they heard someone else say. What is interesting about hearsay is that even though the general rule is that a person can not testify to something that they heard someone else say, there are a large number of exceptions to the hearsay rule. Even though the rules in criminal and civil cases are mostly identical there are some very important differences.
The large number of exceptions to the hearsay rule means that often a witness can testify to what another person said if their attorney is familiar enough with how the rules of evidence are applied. The rule against hearsay only applies to testimony that is offered to support the truth of whatever matter is being asserted. Any out of court statement by another person is not hearsay if it is not offered for the truth of the matter asserted.
Whether or not a witness is available to testify they can testify to what another person said under the following conditions:
- Present Sense Impression. A statement that is made during or immediately after an event
- Excited Utterance. A statement made describing an event while excited about that event.
- Then Existing Mental, Emotional, or Physical Condition. A statement about a person’s state of mind or other personal condition.
- Statements for Purposes of Medical Diagnosis or Treatment. Statements made to a medical professional relating to medical care.
- Recorded Recollection. Something written down that contains information that a person had once known but has since forgotten.
- Records of Regularly Conducted Activity. A document that describes information that is kept, typically by a business, according to a standardized procedure by a business or organization.
- Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). If there is a lack of a record of a type that generally would be expected to be in a business record then the lack of the existence of that record can be entered into evidence.
- Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth (A) the activities of the office or agency, (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel or (C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law unless the sources of information or other circumstances indicate lack of trustworthiness.
- Records of Vital Statistics. Birth certificates, marriage certificates, death certificates, etc…
- Absence of Public Record or Entry. The lack of a public record or entry is permitted in order to show that it does not exist.
- Records of Religious Organizations. Many religious organizations keep extensive records. These statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history are admissible.
- Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official are admissible.
- Family Records. Any statements of fact concerning personal or family history contained in religious books, genealogies, charts, engravings on jewelry, inscriptions on portraits or the like are generally admissible.
- Records of Documents Affecting an Interest in Property. The record of a document regarding property that is kept by the government.
- Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document.
- Statements in Ancient Documents. Statements written down for twenty years or more if the authenticity of the documents are established.
- Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations that are relied upon by the general public or people in certain occupations are generally admissible.
- Learned Treatises. When an expert witness testifies, certain books or resources of the type that that type of expert relies upon may be read into evidence but may not be entered as an exhibit.
- Reputation Concerning Personal or Family History. Testimony that relates to the reputation of a person’s family by blood, adoption, or marriage concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history can be admitted into evidence.
- Reputation Concerning Boundaries or General History. In certain circumstances, information about boundaries of or customs affecting lands in the community may be offered.
- Reputation as to Character. Reputation of an individual’s character among associates or in the community can be offered into evidence.
- Judgment of Previous Conviction. Court records showing a conviction for a crime can typically be admitted, subject to certain conditions.
- Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries are typically admissible.
- Statement Against Interest. If somebody makes a statement that hurts their reputation or interests, that statement may be entered into evidence under the theory that no one would make such a statement if it were not true and correct.
A person’s former testimony, dying declaration and statements of personal or family history are also admissible, but only if the original speaker is unavailable to testify at trial.