Can Hearsay Be Used as Evidence in My Criminal Trial?

Posted in Criminal Defense on May 20, 2019

Hearsay is something said outside of the courtroom, used to try to prove the truth of the matter at hand. Any statement one does not make while testifying at the current trial will qualify as hearsay if a party tries to use the statement as evidence of the statement’s own truth. The person who spoke the hearsay is the declarant according to federal law. According to federal law, one cannot use hearsay as evidence during a criminal trial, unless an exemption exists.

What is Hearsay?

Hearsay is a statement someone makes out of court or trial, offered by one party to prove the truth of whatever the statement asserts. A hearsay statement may be oral or written. Rule 801(c) of the Federal Rules of Evidence (FRE) defines hearsay. A statement by the declarant is not hearsay if the statement is inconsistent with the declarant’s official testimony. If it is consistent with testimony, it may still be hearsay in two situations.

1. If offered to rebut a charge the declarant made up.
2. If offered to reestablish the declarant’s credibility as a witness.

If someone offers a statement against the opposing party, it may not be hearsay if the party believed the statement to be true, or if the party that made the statement was an authority on the subject, the party’s employee within the scope of the employment relationship, or the party’s coconspirator. Understanding whether a statement counts as hearsay may take help from a local criminal defense attorney.

What is Double Hearsay?

Double hearsay, or hearsay within hearsay, happens when one statement includes more than one out-of-court assertions.  Double hearsay statements have multiple layers of hearsay. Federal rules hold that all layers of a double hearsay statement must qualify as an exception for the courts to consider it as admissible evidence.

Can the Defense or Prosecution Use Hearsay as Evidence?

In general, the courts do not allow a party to use hearsay as evidence during a criminal case. Hearsay is usually inadmissible as evidence during trial, according to Rule 802 of the FRE. Hearsay is not admissible evidence due to four principal concerns the federal courts have cited with the reliability of the statement.

1. The witness might have lied.
2. The witness might not have understood the situation.
3. The witness might have remembered wrong.
4. The witness might have an inaccurate perception.

Risks in terms of sincerity, narration, memory, and perception make hearsay too unreliable to serve as evidence in most cases. The courts improve the reliability of other statements made during a trial by making witnesses testify under oath, comply with cross-examination, and appear in court for analysts to assess demeanor and overall credibility. Hearsay, since spoken out of court, is unreliable. Thus, the courts generally prohibit use of hearsay as evidence. However, many exemptions and exceptions exist to the rule.

Exceptions to the Rule

If an exception applies, the courts may permit you or the other party to enter hearsay as evidence during a trial. Under FRE Rule 803, the rule against hearsay has 23 different exceptions, including the following.

• A statement describing an event that just happened
• A statement made while under the stress of excitement
• An existing mental, emotional, or physical condition
• Statement describing a medical diagnosis or treatment
• A recorded recollection while the event was fresh
• A record of an activity that happens regularly
• Public records
• Certificates of marriage
• Market reports
• Statement of judgment during a conviction

Most exceptions apply regardless of whether the declarant can testify in court. The reason for most exceptions is that the circumstances make a statement reliable enough to pass as fact during a trial. Statements made in the excitement of the moment, for example, are more likely to be the declarant’s true thoughts, since he or she reasonably did not have time to make up a lie. Of course, this is not always true, and it is still up to the judge or jury to accept or disregard a hearsay statement.