Hearsay Doctrine Exceptions

Hearsay Doctrine Exceptions

     As we know, there is a general prohibition against hearsay statements from being presented as evidence in the courtroom.  The rationale for that prohibition being that such statements lack reliability given their out of court nature and inability to cross examine effectively upon those out of court statements.  There are, however, exceptions and exemptions applicable to the hearsay rules.  Today I want to talk about some of these exceptions to the hearsay rule.  These exceptions allow for statements which are in fact hearsay, to be admitted into evidence despite their hearsay nature.  They are excepted from the rule given that these certain statements have some type of underlying assurances of reliability. 

     The first exception I’d like to talk about is that of the past recollection recorded exception.  This exception allows for a prior recorded statement to be admitted into evidence under certain circumstances.  Remember that hearsay consists of written statements in addition to oral statements.  In the context of this exception the witness must not be able to accurately recall some facts that were recorded at an earlier date.  Note that additionally the witness must not be able to remember the exact contents of were transcribed into a report, even after viewing the report in court on the witness stand.  Given that the fats in the report are relevant to the case the court may allow them into evidence assuming that they were recorded at a time in which the facts were still fresh in the witness’s mind.  In these circumstances you are going to be dealing with admission of a document which records the witness’s memory.  The rule generally requires that the witness either prepared the written record him or herself, or otherwise if someone else prepared the record that the witness verified that same report.  This record must have been prepared while the facts recorded were still fresh in the witness’s memory.  It is essential that the recorded statement reflect facts that the witness personally observed.  Thus the witness couldn’t record another witness’s hearsay statements.  All these elements need to be established by your witness in order to lay an adequate foundation. 

     There is a very similar exception to the past recollection recorded exception which may suffice even if the witness remembers the contents of the report after viewing the same.  Remember that part of the foundation for the past recollection recorded exception is that the witness cannot recall the facts as outlined in the report even after viewing the report.  Only upon this showing may the hearsay evidence be admitted under the past recollection recorded exception.  However, the present recollection refreshed or revived exception does away with the requirement that all facts cannot be accurately remembered.  With the present recollection refreshed exception the exhibit is used to refresh the memory of the witness.  Many jurisdictions don’t require the other foundational requirements, which are found in the past recollection recorded exception, for the present recollection refreshed exception to apply.  For example, it isn’t necessary that the witness prepare the document or verify the document.  Additionally there is no requirement that the document be prepared while events were fresh in the witness’s mind.  Rather, all that is required for a foundational showing under the present recollection refreshed exception is that the witness cannot recall the facts or events which transpired and that the witness affirms that a certain document or object will refresh his or her memory.  After this foundational showing is accomplished the document or object should be shown to the witness and then removed from the witness’s sight.  The witness can then testify as to whether his or her memory has been refreshed after viewing this document or object.  If the witness’s memory has been refreshed then he or she can now testify from memory. 

     Beyond the two exceptions referenced above there are some other exceptions which are permitted because we deem the context of the hearsay statements to provide greater guarantees of reliability than ordinary hearsay statements.  The first type of exception for discussion is that of the excited utterance exception.  This exception applies to statements made while the speaker is under a state of excitement.  The theory is that since the speaker makes the declaration spontaneously without time to think or contrive that the statement must be more reliable than an ordinary hearsay statement.  An interesting point here is that most courts will accept the speaker’s assertion that there was indeed a startling event which took place, at face value.  Thus there must not ordinarily be a showing of any corroborating evidence to demonstrate that the event which caused the statement even occurred.  Getting beyond this, note that the event must be one which would startle an ordinary individual.  The declarant of the hearsay statement must have made that statement while he was in fact in a state of excitement.  This element of the foundation is of course subjective.  Thus there must be a determination as to whether the statement was made near enough in time to the startling event so as that the ordinary individual would still be in a state of shock or stress.  The last thing to remember is that when you are laying your foundation here, be sure to illicit that the statement was made by a person who actually participated or observed the startling event. 

     Somewhat similar to the excited utterance exception is that of the present sense impression exception.  With respect to the excited utterance exception, the rationale for allowing the hearsay statement is that the witness doesn’t have time to ponder and contrive a false statement.  The spontaneity of the expression is the guarantee of reliability.  With regard to the present sense impression, the guarantee of reliability doesn’t stem from any context of spontaneity but rather from the fact that the statement was made contemporaneously with the event.  Since the statement is made contemporaneously or immediately following the event the theory is that the declarant’s memory was fresh at the time of the statement.  Thus the statement doesn’t suffer from any lack of reliability which may be the result of gaps in memory.  For this exception to apply the court must look much more closely to the timing of the statement in relation to the event, than the court does for the excited utterance exception.  With the excited utterance the statement can be made sometime after the event as long as the witness is still excited or under a state of stress.  With regard to the present sense impression, it is necessary that the statement be made during or immediately after the event.  The delay will usually be measured in a matter of minutes.  Anything more than 15 to 20 minutes following the event would likely be deemed too remote to qualify for the exception.  As is the case with the excited utterance, with present sense impression, the event must have been personally observed by the declarant. 

     I, Eric Roy,  wrote this article for my own personal learning benefit.  If you wish to find a more authoritative source for this information then I direct you do your state or federal rules of evidence directly.  Remember that all states have their own rules of evidence which may or may not differ from the Federal Rules of Evidence.  You should also consider reading Edward Imwinkelried, (2012) Evidentiary Foundations.  Evidentiary Foundations, is an excellent book which provides terrific insight into this subject matter.  This particular book is the source of much of my own information on the subject, as outlined above.   

Laying a FoundationNevada Civil Trial Rules