Ellis Law Group


Applying the Hearsay Rule and Its Exception

A. Identifying Hearsay Testimony or Documents

Hearsay is an out-of-court statement offered to prove the truth of the matter
stated. Cal. Evid. Code § 1200(a); Fed. R, Evid. ("FRE") 801(c).

The hearsay rule excludes out-of-court statements submitted for their truth, except
as provided by law —such as when it falls within an established exception. Cal, Evid.
Code § 1220, et seq.; FRE 801(c), 803, 804 and 807.

The rationale for excluding out-of-court statements attempted to be used in court
for their truth is the lack of tnistworthiness and reliability of such evidence.
Statements made out of court were not subject to cross examination at the time
they were made and, as such, may be unreliable as substantive proof. Moreover, cross
examination at trial is not necessarily a substitute for this problem of lack of cross
examination at the time the statement was made. Buchanan v. Nye (1954) 128
Cal.App.2d 582, 585; FRE SO1(d)(i) (Adv. Comm. Notes)

This remains true even if the out-of-court statement was made under oath, such as
in a prior deposition, sworn declaration, report, or even at a prior trial or hearing.

Out-of-court statements used to prove the truth of the matter stated are admissible,
however, if they fall within one of the recognized exceptions to the rule. These
exceptions carry the necessary indicia of reliability and trustworthiness from the
circumstances under which they are made.

Moreover, what may, at first blush, appear to be hearsay, may in fact be non

Conduct may or may not be hearsay depending on the circumstances. Non-verbal
conduct that is intended to be a substitute for words is hearsay if offered in Court to prove the truth of what was intended to be a communication. FRE SO 1(a) and. (e); Cal. Evid. Code § 225

Where the out-of-court statement is offered for some purpose other than for its
tnith, it is not hearsay. Cal. Evid. Code § 1200(a); FRE 801(c). The hearsay rule is not
implicated where the issue is whether something happened, or something was said, or
done. In these situations, the statements or events or dates are operative facts and hence.non-hearsay. See, e.g., FRE 801(c).

Likewise, out-of-court statements used for impeachment purposes are not hearsay.
The out-of-court statements are not being used for their truth, but rather to attack the
witness' credibility. See, e.g., FRE 613.

An out-of-court statement by a party opponent may be used for its truth and for
impeachment purposes.

Examples of statements that may be deemed non-hearsay include: alleging false
representations, statements related to real property transactions, contract formation,
defamation, discriminatory practices, authorization, knowledge of events, to establish
residency, identity, and the like.

B. Objecting to an Opponent's Use of Hearsay

  1. Evaluate for what purpose ostensible hearsay evidence will be used. (Is it hearsay?)

  2. If it is, is there a recognized exception or statute that permits its use?

  3. Motions in limine.

  4. Authentication and foundation.

  5. Preliminary determinations by court. Cal. Evid. Code §§ 402, et seq.

  6. Hearsay proponent bears the burden of proving non-hearsay, hearsay but
    with an exception, non-availability of witness, and so forth.

C. Demonstrating How Evidence Falls Under Hearsay Exception

The "classic" hearsay exceptions are:

  1. Admissions. Cal. Evid. Code §§ 1220-1227, FRE 801{d){2)(A}-{E).

  2. Declarations against interest. Cal. Evict. Code § 1230; FRE 804(b)(3).

  3. Prior statements or testimony. Cal. Evict. Code §§ 1235-1238, 1291-1293;
    FRE $04(b)(1); cf. FRE 801(d)(1)(A)

  4. Present-sense impressions/excited utterances. Cal. Evict. Code §§ 1240,
    1241; FRE 803(1)

  5. Dying declarations. Cal. Evict. Code § 1242; FRE 804(b)(2).

  6. Judgments, orders, etc. are hearsay, but may be used for non-hearsay
    purposes, and judicial notice of their existence may be taken for purposes
    of proving a prior adjudication took place for yes judicata/collateral
    estoppel purposes.

  7. State of mindlbody. Cal. Evict. Code §§ 1250, 1251; FRE 803(5).

  8. Business records. Cal. Evict. Code §§ 1270, 1271, 1272; FRE 803(6) and (7).

  9. Public or official records. Cal. Evict. Code §§ 1280-1284; cf. §§ 1270
    1272; FRE 803(8)

  10. Federal hearsay "catch-all" exception. FRE 807 (A proposed amendment
    is to take effect December 1, 2019.)

D. Handling Double Hearsay

Each level of hearsay must be analyzed independently, and each level must fall
within one of the established exceptions or qualify as non hearsay. Cal. Evict. Code §
1201; FRE 805

E. Avoiding Hearsay Objections

Think carefully about the purpose of the evidence you are seeking to admit. Is it
even necessary? Is it cumulative?

Does the use of the evidence Have more than one purpose -one. which is not

Have you established relevance and laid the proper foundation?

Have you considered California Evidence Code § 352 or FRE 403?


The above article and all articles in this website are not intended to be legal advice. Readers should consult an attorney to determine how the law applies to their particular circumstances. Also, please understand that the law constantly evolves and changes. Certain of the decisions and legal propositions quoted in the above article may be out of date or superseded.

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