Welcome back, bar exam studiers! Today we’re tackling a major area of evidence that commonly appears on the bar - hearsay.

Hearsay Defined.

So what exactly is hearsay? Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Breaking this definition down piece by piece is helpful:

First, it has to be an out-of-court statement. This means it was made outside of the current court proceeding. For example, statements made during a deposition or police interrogation would be out-of-court statements. The key is that they weren’t made under oath at the current trial or hearing.

Second, it has to be offered into evidence. The statement has to be presented through a witness or document at trial in order to qualify as hearsay. Just because someone made a statement out of court doesn’t make it hearsay - that statement has to be offered as evidence.

Finally, the statement has to be used to prove the truth of whatever was asserted in the statement. This is the most confusing part of hearsay for many students. Basically, if the statement is being used to prove the truth of something stated, then it’s hearsay.

For example, if Jim said “John punched me,” and that statement was offered to prove that John did in fact punch Jim, it would be hearsay. The statement is offered for the truth of the matter asserted - that John punched Jim. This is the key hearsay danger - out-of-court statements used to prove the truth.

On the other hand, if Jim said “John punched me,” and that statement was offered merely to prove that Jim said it, not to prove the underlying fact that John punched Jim, then it would be non-hearsay. The hearsay rule only applies when out-of-court statements are offered for their truth.

When Hearsay is Admissible vs. Inadmissible .

So when can hearsay statements be admitted into evidence and when are they prohibited?

The default rule is that hearsay is inadmissible. As we’ll discuss more soon, there are exceptions that can make hearsay admissible. But absent an exception, hearsay will be excluded as unreliable and untested.

The two main risks of hearsay are lies and mistakes. With out-of-court statements, we don’t know if the declarant lied or remembered inaccurately. We can’t cross-examine them. So hearsay raises risks of unreliability that make it inadmissible by default.

However, there are dozens of exceptions where the law has decided hearsay can be admitted. The rule against hearsay and its exceptions aim to find the optimal balance between competing interests.

Courts want to admit reliable, probative evidence. But they also recognize the value of testing evidence through cross-examination. The hearsay exceptions identify situations where hearsay is likely to be reliable or necessary despite the lack of cross-examination.

Where a recognized exception applies, hearsay will be admissible. The jury can rely on it as substantive evidence. But again, absent an exception, hearsay is inadmissible and cannot be used as proof.

Hearsay Exceptions.

Alright, so when can we get past the rule against hearsay? Let’s quickly cover some of the key hearsay exceptions:

Opposing Party Statement - Any statement made by an opposing party in the case is by definition not hearsay. It can be admitted against that party. So if the defendant said “I robbed that bank,” that admission could come into evidence as non-hearsay.

Present Sense Impression - A statement describing an event while perceiving the event is allowed as a present sense impression. The contemporaneousness provides some reliability. For example, “Look, that car just ran the red light!”

Excited Utterance - A statement made in reaction to a startling event can come in as an excited utterance while the declarant was under the stress. Like “Oh my God, we’ve been robbed!” after discovering a theft.

State of Mind - Statements about the declarant's then-existing mental state can be admitted. Such as “I’m so depressed.”