What Are Hearsay Exceptions?

Terry Masters

Hearsay exceptions are certain extraordinary circumstances that will enable out of court statements made by a party who is not present in court to be admitted into evidence upon the testimony of a third party. Every country treats hearsay evidence differently. Most of the countries with a common law legal system have codified exceptions that were available historically. Some jurisdictions have substantially expanded the list of common law hearsay exceptions, while others have limited the list to a mere handful. Still others have abolished the use of a specific list of exceptions in favor of a test that weighs the interests of justice to determine whether hearsay evidence should be admitted.

Witnesses typically are only allowed to testify about facts that they have first-hand knowledge of.
Witnesses typically are only allowed to testify about facts that they have first-hand knowledge of.

Witness testimony in court cases is subject to certain fundamental rules of fairness. One of these rules is that a witness should only testify about matters of which he has direct knowledge. This allows the other party to challenge him directly on his recollection and veracity. A witness who testifies about something he was told about by another party who is not present to take the stand and be cross-examined is presenting hearsay, which is ordinarily excluded from evidence.

Certain exceptions existed under common law that would allow hearsay to be admitted into evidence. Countries with legal systems based on common law codified many of the historical exceptions with present-day modifications. Some countries discarded the notion of exceptions altogether and now rely upon a case-by-case application of discretion by the judge.

The U.S., for example, recognizes at least 30 hearsay exceptions through the use of its Federal Rules of Evidence. Those exceptions are broken down into instances when the original witness is available to come to court but isn’t in court and instances when he is completely unavailable. In the first circumstance, exceptions include declarations that were made suddenly, without pausing to consider. The court has held that these types of statements have an inherent reliability because of the unplanned nature of the presentment and need not be subject to cross-examination. Hearsay exceptions for unavailable witnesses include declarations made when there is no self-interest inherent in lying.

In England and Wales, hearsay is admissible in civil cases but only in certain circumstances in criminal cases. These countries have only three statutory hearsay exceptions but still recognize many of the common law exceptions. The court will also allow hearsay if both parties agree or if it will serve the interests of justice to allow the evidence in. Canada, in comparison, has done away with specific adherence to the common law exceptions and instead relies on the interests of justice test to decide whether or not to admit hearsay into evidence.

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