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.
[1] 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.
[2] The Supreme Court has further clarified that a "statement" refers to "a single declaration or remark, rather than a report or narrative".
Thus, the reason a party offers a statement is central to determining whether it qualifies as excludable hearsay.
[5] 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.
[8] Despite these risks, courts allow testimonial evidence because of in-court safeguards "calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal (judge or jury) to estimate it at no more than its actual value".
Under the Federal Rules of Evidence, a statement that meets one of the two following conditions is considered not hearsay, and thus admissible.
The drafters of this section of the rules "felt that the jury should not be required to do mental gymnastics here—the jurors should not be asked to separate credibility use from substantive use.
In United States Supreme Court Case United States v. Owens, 484 U.S. 554 (1988), the Court held a victim's previous identification of the defendant as his assailant was admissible under Federal Rule of Evidence 801(d)(1)(c), despite memory problems like being unable to remember seeing his attacker.
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.
For example, if a witness testifies, "Officer Lincoln told me that he interviewed the defendant Claire, who admitted that she 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.
[22] The second layer of hearsay, what Defendant Claire said about the robbery, can be admitted as an opposing party's statement.
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.
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.
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".
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".
Even written documents made under oath, such as affidavits or notarized statements, are subject to the hearsay rule.
But, if the attorney is seeking to use the statement to prove that the phone lines were working that day, or that Jim had not lost the power of speech, or for any other purpose, then the statement is not being offered to prove the truth of the matter asserted, and therefore it is not hearsay.
If the witness testifies, "The truck that struck the yellow car was blue", the statement is not hearsay.
In this example, simple logic tells that there is a difference: while the first statement may be true, it does not assert anything about the truth of the matter stated.