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Hearsay is an out of court statement that is offered into evidence to prove the truth of the matter asserted in the statement. When a statement is offered into evidence, there are (at least) three things to consider: is it hearsay under the definition (e.g., statement, for the truth, etc.); is it nonhearsay (e.g., admission by party opponent, prior inconsistent statement, etc.); or is it hearsay that falls under an exception. Many times, a statement might fall in multiple categories – that is why it is important to ask the question “Why?” to determine the purpose of the evidence. Also remember that if a statement is objected to as hearsay, then the proponent of the statement has the burden of showing it is not hearsay or falls within an exception.[1]
Is it hearsay?
The first step is to figure out if the statement is being used to prove the truth of the matter asserted. This isn’t always the easiest thing to do. As Judge Hill of the South Carolina Court of Appeals has noted:
To be sure, there are times when out-of-court statements may be admitted for something other than their truth. Just as surely, there are times when the familiar refrain of ‘it's not being offered for the truth’ is the courtroom equivalent of ‘it's not about the money.’[2]
The purpose of the statement could be used to show how someone reacted. It could be used to show that someone is a liar and the statement is merely for impeachment purposes. Or for a myriad of reasons. In determining the truthfulness of the statement, a trial judge can attempt to ask “does it matter whether or not this statement is true?” This does not always answer the question, but it is a starting point.
Is it nonhearsay?
If the statement is hearsay, then is it nonhearsay. This means that the statement is an out of court statement used to prove the truth of the matter asserted, but the Rules of Evidence have declared certain statements as not hearsay. These statements include (with certain conditions to be met): prior inconsistent statements, prior consistent statements, prior identification, CSC statements of time and place, and party admissions.
Does it fall under an exception?
There are two separate sets of exceptions to hearsay. The first exceptions do not require the proponent of the statement to explain why the declarant is not at trial to testify. This is because these types of statements are inherently reliable. These exceptions include excited utterance, present sense impression, business records, and many more. The second set of exceptions requires the proponent of the statement to explain why the declarant is unavailable – which is specifically defined in the rule. There are four statements which fall under this exception: former testimony, dying declaration, statement against interest, and personal/family history.
Crawford Issues
Confrontation Clause and Crawford will supersede any hearsay exceptions or rules. (See the chapter “Sixth Amendment: Crawford”).