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the legal term

Hearsay is testimony from a witness under oath who is reciting an out of court statement that is being offered to prove the truth of the matter asserted. The Federal Rules of Evidence prohibit introducing hearsay statements during applicable federal court proceedings, unless one of nearly thirty exemptions or exceptions applies. The Federal Rules of Evidence define hearsay as:A statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. (F. R. E. 801(c)). The "declarant" is the person who makes the out of court statement. (F. R. E. 801(b)). Thus, a trial court must separately analyze each individual statement, "sentence by sentence," rather than analyzing the narrative as whole for hearsay content or exceptions. "The truth of the matter asserted" means the statement itself is being used as evidence to prove the substance of that statement. For example, if a witness says, "Margot told me she loved Matt" to prove that Margot did in fact love Matt, the witness's statement is hearsay. Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay. If a statement is being used to prove something other than the truth of what the statement asserts, it is not inadmissible because of the hearsay rule. A quintessential example is the U. S. Supreme Court case of Tennessee v. Street (1985), in which a co defendant's confession was properly admitted against the defendant—not for the hearsay purpose of directly proving that both men jointly committed a robbery and murder—but for the nonhearsay purpose of rebutting the defendant's claim that his own confession was elicited through the sheriff's coercive tactic of reading his co defendant's confession to him. In cases where a statement is being offered for a purpose other than the truth of what it asserts, trial judges have discretion to give the jury a limiting instruction, mandating the jury consider the evidence only for its intended, non hearsay purpose. Although the Federal Rules of Evidence govern federal proceedings only, 38 states have adopted the Uniform Rules of Evidence, which closely track the Federal Rules.

Under the Federal Rules of Evidence, a statement that meets one of the two following conditions is considered not hearsay, and thus admissible. (F. R. E. 801(d)(1))

Excited utterances: Statements relating to startling events or condition made while the declarant was under the stress of excitement caused by the event or condition. This is the exception that may apply to the 'police officer' scenario described below. The victim's cries of help were made under the stress of a startling event, and the victim is still under the stress of the event, as is evidenced by the victim's crying and visible shaking. An excited utterance does not have to be made at the same time of the startling event. A statement made minutes, hours or even days after the startling event can be excited utterances, so long as the declarant is still under the stress of the startling event. However, the more time that elapses between a startling event and the declarant's statement, the more the statements will be looked upon with disfavor. Present sense impression: A statement expressing the declarant's impression of a condition existing at the time the statement was made, such as "it's hot in here" or "we're going really fast." Unlike an excited utterance, it need not be made in response to a startling event. Instead, it is admissible because it is a condition that the witness would likely have been experiencing at the same time as the declarant, and would instantly be able to corroborate. Declarations of present state of mind (then existing mental, emotional, or physical condition): Much like a present sense impression describes the outside world, declarant's statement to the effect of "I am angry!" or "I am Napoleon!" will be admissible to prove that the declarant was indeed angry, or did indeed believe himself to be Napoleon at that time. Used in cases where the declarant's mental state is at issue. Present state of mind statements also includes statements about plans or intent (e. g., "I'm gonna go buy some groceries and get the oil changed in my car on my way home from work"), which can be used as circumstantial evidence of subsequent acts committed by the declarant. However, this exception does not apply to statements about memory or belief that are used to prove the fact remembered, unless the memory/belief is about the validity of terms in the declarant's will. Statement Made for Medical Diagnosis or Treatment. : Another exception is statements made in the course of medical treatment, i. e., statements made by a patient to a medical professional to help in diagnosis and treatment. However, the statement must be reasonably related to the treatment, such as medical history, past or present symptoms or sensations, their inception, or their general cause. Business records exception: business records created during the ordinary course of business are considered reliable and can usually be brought in under this exception if the proper foundation is laid when the records are introduced into evidence. Depending on which jurisdiction the case is in, either the records custodian or someone with knowledge of the records must lay a foundation for the records, however. The use of police records, especially as substantive evidence against the accused in a criminal trial, is severely restricted under the Business Records exception. Typically, only generalized evidence about police procedure is admissible under this exception, and not facts about a specific case. For example, John is stopped for speeding 70 miles per hour in a 50 mile per hour zone. The officer, who determined John's speed with radar, records the speed in an incident report. He also calibrates and runs a diagnostic on his radar every day prior to beginning his shift. He records this in a log. At trial, the report itself would not be admissible as it pertained to the facts of the case. However, the officer's daily log in which he records his calibration and the daily diagnostics of his radar unit would be admissible under the business records exception. Prior inconsistent statements: Many states have departed from the approach of the federal rules with respect to inconsistent statements. Under current law in these jurisdictions, a prior inconsistent statement made by a witness (even when not made under oath at a judicial proceeding or deposition) is admissible as substantive evidence provided the declarant signed the statement. Other exceptions, declarant's availability immaterial: In the United States Federal Rules of Evidence, separate exceptions are made for public records, family records, and records in ancient documents of established authenticity. When regular or public records are kept, the absence of such records may also be used as admissible hearsay evidence.

Dying declarations and other statements under belief of impending death: often depicted in movies; the police officer asks the person on his deathbed, "Who attacked you?" and the victim replies, "The butler did it." In reality, case law has ruled out this exception in criminal law, because the witness should always be cross examined in court; however, there is an exception to this exception for criminal cases: even though generally inadmissible to matters relating to criminal law, the exception has been carved out for actions relating to homicide cases [Fed. R. Evid. 804(b)(2)]. Declaration against interest: A statement that would incriminate or expose the declarant to liability to such an extent that it can be assumed he would only make such a statement if it were true. It would be assumed that one would lie to further one's interests, so a statement against his interests (such as exposing oneself to criminal or civil liability) likely would not be made unless it were true. Admission of guilt: if a declarant makes a statement, verbal or otherwise, as an admission of guilt of the matter at hand, that statement is admissible. Unlike other cases of declarations against interest, the declarant in this situation need not be unavailable. Prior testimony: if the testimony was given under oath and the party against whom the testimony is being proffered was present and had the opportunity to cross examine the witness at that time. Often used to enter depositions into the court record at trial. Forfeiture by wrongdoing: the party against whom the statement is now offered (1) intentionally made the declarant unavailable; (2) with intent to prevent declarant's testimony; (3) by wrongdoing.

In some jurisdictions, such as Canada, the limited exceptions format to the rule have been replaced by a more general theory of exceptions to the hearsay rule that allows courts to decide when documents, testimony or other evidentiary proof can be used that might not otherwise be considered. The underlying rationale for many of the hearsay exceptions is that the circumstances of a particular statement make them reliable enough to be heard by a trier of fact. Statements made during the course of medical treatment, for example, are considered reliable because patients typically have little reason to lie to a doctor while they are being treated, and will generally be accurate in describing their ailments. This, of course, is not always true. Patients do sometimes lie to their doctors (to get painkillers to which they are not entitled, for example). Hearsay exceptions do not mandate that a trier of fact (the jury or, in non jury trials, the judge) accept the hearsay statement as being true. Hearsay exceptions mean only that the trier of fact will be informed of the hearsay statement and will be allowed to consider it when deciding on a verdict in the case. The jury is free to disregard a hearsay statement if the jury does not believe it. The hearsay rule controls only what out of court statements a trier of fact gets to consider in deciding a case, not how they consider the out of court statements.

Hearsay within hearsay, or "double hearsay," occurs when multiple out of court assertions appear in one statement. For example, if a witness testifies, "Officer Lincoln told me that he interviewed the defendant Claire, who admitted that she committed the robbery." There are two layers of hearsay here; two out of court declarants. The first layer is what Officer Lincoln told the witness about conducting an interview. Officer Lincoln is the first declarant: "I interviewed the defendant." The second layer is what the defendant Claire told Officer Lincoln during that interview. Defendant Claire is the second declarant: "I committed the robbery." The Federal Rules clarify that each layer of hearsay must have an exemption or exception for the entire statement to be admissible. (F. R. E. 805). The second layer of hearsay, what Defendant Claire said about the robbery, can be admitted as an opposing party's statement. But the first layer, Officer Lincoln's statement to the witness, still needs an exception or exemption for the entire statement to be admissible under the hearsay rules. Rationale. As legal evidence scholar Paul F. Rothstein describes the double hearsay problem:"One child whispers to the next a message, who whispers it to the next, who whispers it to the next, etc., on down a long line of children. When the last child and the first child compare the message, it is usually found that the two are not very alike."

Generally in common law courts the "hearsay rule" applies, which says that a trier of fact (judge or jury) cannot be informed of a hearsay statement unless it meets certain strict requirements. However, the rules for admissibility are more relaxed in court systems based on the civil law system. In the civil law system, the courts, whether consisting only of judges or featuring a jury, have wide latitude to appreciate the evidence brought before them. [Note: Louisiana, a civil law jurisdiction, does not share the above referenced feature generally found in civil law jurisdictions. With few exceptions, Louisiana follows rules predicated upon the Federal Rules of Evidence.] Furthermore, even in common law systems, the hearsay rule only applies to actual trials. Hearsay is admissible as evidence in many other judicial proceedings, such as grand jury deliberations, probation hearings, parole revocation hearings, and proceedings before administrative bodies. In criminal law, Crawford v. Washington, 541 U. S. 36 (2004), reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Crawford gives enhanced protection to defendants when the hearsay offered against them is testimonial in nature. When a statement is deliberately accusatory, or when the declarant knows that the statement is likely to be used in the prosecution of the defendant for a crime, the need for face to face confrontation is at its highest. When statements are directly accusatory, the defense needs an opportunity to explore the accuser's motives. Where statements are the product of police interrogation, there is a need to ensure that the testimony is not the product of improper coercion or intimidation. Ohio v. Roberts, 448 U. S. 56 (1980), set forth a two pronged test in order for hearsay to be admissible against a criminal defendant: (1) the declarant generally must be shown to be unavailable; and (2) the statement must have been made under circumstances providing sufficient "indicia of reliability". With respect to the second prong, a reliability determination may assume that hearsay is sufficiently reliable for constitutional purposes if it satisfies a "firmly rooted" hearsay exception. In practice this means that lower courts need to make reliability determinations only for hearsay that is offered under a "catchall" exception, such as Federal Rule of Evidence Rule 807, or under new or non traditional hearsay exceptions that are not "firmly rooted". However, Crawford v. Washington overruled Ohio v. Roberts.