Hearsay Rule

Because the person who supposedly knew the facts is not in court to state his/her exact words, the trier of fact cannot judge the demeanour and credibility of the alleged first-hand witness, and the other party’s lawyer cannot cross-examine (ask questions of) him or her. However, as significant as the hearsay rule itself are the exceptions to the rule which allow hearsay testimony such as:

• a statement by the opposing party in the lawsuit which is inconsistent with what he/she has said in court (called an “admission against interest”);
• business entries made in the regular course of business, when a qualified witness can identify the records and tell how they were kept;
• official government records which can be shown to be properly kept;
• a writing about an event made close to the time it occurred, which may be used during trial to refresh a witness’s memory about the event;
• a “learned treatise” which means historical works, scientific books, published artworks, maps and charts;
• judgments in other cases;
• a spontaneous excited or startled utterance (“oh, God, the bus hit the little girl”);
• a contemporaneous statement which explains the meaning of conduct if the conduct was ambiguous;
• a statement which explains a person’s state of mind at the time of an event;
• a statement which explains a person’s future intentions (“I plan to?.”) if that person’s state of mind is in question;
• prior testimony, such as in deposition (taken under oath outside of court), or at a hearing, if the witness is not available (including being dead);
• a declaration by the opposing party in the lawsuit which was contrary to his/her best interest if the party is not available at trial (this differs from an admission against interest, which is admissible in trial if it differs from testimony at trial);
• a dying declaration by a person believing he/she is dying;
• a statement made about one’s mental set, feeling, pain or health, if the person is not available-most often applied if the declarant is dead (“my back hurts horribly,” and then dies);
• a statement about one’s own will when the person is not available;
• other exceptions based on a judge’s discretion that the hearsay testimony in the circumstances must be reliable.

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