Hearsay/Hearsay Exceptions in D.C.

There are two questions to ask with regard to an oral/written statement or behavior that might be hearsay. First, is it hearsay?  Second, if it is hearsay, is it nonetheless admissible as an exception to the hearsay rule?

Provided below is (1) a primer on hearsay in D.C,, (2) a summary of the major exceptions to the hearsay rule in D.C., and (3) answers to some of the most frequently asked questions.  

DEFINING HEARSAY

Is it hearsay?

Hearsay is (1) an out-of-court assertion (2) that is offered to prove the truth of the matter asserted. If it does not satisfy both conditions, it is not hearsay.

First, the out-of-court declaration in question must be intended as an assertion.  The assertion can be oral or written.  It can also be non-verbal conduct, such as pointing or nodding, if the person intended it as an assertion.  In other words, hearsay can also be behavioral.  The Hearsay Handbook by David E. Binder uses the example of a witness to a crime who is asked to pick out the culprit from a lineup.  The witness may say: “The man on the left did it.  Or the witness may mark a box on a form identifying the man.  Or the man may silently point at the man.   In all three cases, the witness has made an assertion.  If a police officer at trial relates what he observed the witness say or do to identify the culprit, the officer’s testimony would be hearsay. 

Second, the assertion must be offered to prove the truth of the matter asserted.  This is where most of the confusion with regard to hearsay comes in.  Say, for example, that a party seeks to introduce the prior out-of-court statement that “the ball is red.”  If the purpose of introducing the statement is to prove the color of the ball, that would be hearsay.  It would not be hearsay, however, if the proponent of the evidence is attempting to prove that the declarant is colorblind. 

If it is hearsay, is it nonetheless admissible as an exception to the hearsay rule?

Testimony is only valuable if it is reliable.  According to McCormick on Evidence, in order to assure the reliability of testimony, witnesses are ordinarily required to testify under three conditions. First, they are required to testify under oath.  Second, they need to be physically present at trial.  Finally, they must be subject to, in Justice Scalia’s words, the “crucible of cross-examination.” 

Writes McCormick: “In the hearsay situation, two ‘witnesses’ are involved.  The first complies with all three conditions for the giving of testimony but merely reports what the second ‘witness’ said.  The second ‘witness’ is the out-of-court declarant whose statement was not given in compliance with the ideal conditions but contains the critical information.”

The purpose of the hearsay exceptions is to enable the trier of fact to access this “critical information” in cases in which circumstances suggest reliability despite the non-compliance with the ideal conditions.  For example, the “excited utterance” exception is based on the belief that the “normal reflective thought processes of the observer” – including the reflection needed to formulate a lie — are suppressed under certain conditions of extreme stress. As McCormick puts it, the statement of the declarant must have been a spontaneous reaction to a startling occurrence and not the result of reflective thought.

SUMMARY OF HEARSAY EXCEPTIONS

Admissions of a Party Opponent

Words or acts of a party or a party’s representative may be offered in evidence against the party as an exception to the hearsay rule.

An “admission” admitted under this exception might be vicarious; in other words, it might be made by a co-defendant or co-conspirator, an agent or representative or by someone other than the party against whom the statement is offered, assuming the proponent of the evidence can meet certain conditions.  For example, in the case of a statement by a co-conspirator, the statement could only be admitted if the government were able to prove that (1) a conspiracy existed, (2) the defendant had a connection to the conspiracy, and (3) the co-conspirator made the statement during the course of and in furtherance of the conspiracy. 

Admissions of a party under this exception are received as substantive evidence of the facts admitted and not merely to contradict the party.  As a result, the proponent of the evidence does not need to lay a foundation by first confronting the party with it.  A party’s silence in the face of another person’s statement, which the party would naturally have been expected to deny if untrue, may be admitted as circumstantial evidence of the party’s belief in the truth of the statement.   

For further information on the Admissions of a Party Opponent hearsay exception in D.C., please click here.

Business/Regularly Kept Records

The party seeking the admission of evidence under this exception must demonstrate, through a competent witness, (1) that the record was kept in the regular course of business, (2) that it was the regular course of business to make such a record, and (3) that the record was made at, or within a reasonable time after, the act, transaction, occurrence, or event which it reports.

The proponent of the evidence must also prove that “the maker of the records had personal knowledge of the facts set forth in that record or, if not, that the facts were communicated to the maker, directly or indirectly, by one who was acting in the regular course of business and who had such personal knowledge.

For further information on the Business Records hearsay exception in D.C., please click here.

Declaration/Statement Against Interest

In D.C., the party seeking to admit evidence under this exception must satisfy four conditions.  First, the proponent must prove that the declarant is unavailable. Second, corroborating circumstances must clearly indicate the trustworthiness of the statement. Third, the proponent must prove that the declarant knew when making the statement that it was against his or her interest.  Finally, the proponent must demonstrate that the statement was against the declarant’s proprietary, pecuniary, or penal interest.

For further information on the Statement/Declaration Against Interest hearsay exception in D.C., please click here.

Dying Declaration

The party seeking to admit evidence under this exception in D.C. must satisfy four conditions. First, the party must prove that the person who made the statement is dead at the time the declaration is offered. Second, the proponent must prove that, at the time the statement was made, the declarant was aware that death was near and certain, and had abandoned all hope of living. Third, the proponent must prove that the statement relates to the circumstances of the killing or events immediately preceding it.  Finally, the defendant must be on trial for killing the declarant.

For further information on the Dying Declaration hearsay exception in D.C., please click here.

Excited Utterance

In D.C., the proponent of an “excited utterance” exception to the hearsay rule must establish (1) the presence of a serious occurrence which causes a statement of nervous excitement or physical shock in the declarant, (2) the declaration must have been made within a reasonably short period of time after the occurrence so as to assure that the declarant has not reflected upon this statement or premeditated or constructed it, and (3) the presence of circumstances, which in their totality suggest spontaneity and sincerity of the remark.

For further information on the Excited Utterance hearsay exception in D.C., please click here.

Past Recollection Recorded

According to the “past recollection recorded” exception to the hearsay rule in D.C., a party is allowed to introduce as substantive evidence a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection.  The party seeking to introduce this evidence must be able to prove that (1) the witness had first-hand knowledge of the event, (2) the written statement is an original memorandum made at the time of the event and while the witness had a clear and accurate memory of it, (3) the witness lacks a present recollection of the event, and (4) the witness can vouch for the accuracy of the written memorandum.

For further information on the Past Recollection Recorded hearsay exception in D.C., please click here.

Present Sense Impression

“The present sense impression” exception to the hearsay rule in D.C. allows into evidence an out-of-court statement that describes or explains an event or condition made while the declarant was perceiving the event/condition or immediately thereafter. A present sense impression differs from an excited utterance in that a shocking or startling event need not cause it, and the statement must describe what is perceived rather than reacting to it.

For further information on the Present Sense Impression hearsay exception in D.C., please click here.

Prior Consistent Statement

A statement is not hearsay in D.C. “if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is . . . consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.”  A statement introduced under this exception to the hearsay rule is considered “substantive evidence.”  That is, it can be admitted not only to rehabilitate a witness whose testimony has been challenged but also as proof of the matter asserted. 

A party may not elicit or introduce prior statements by its witness on direct examination that support the witness’ statements at trial.  The prohibition against “bolstering” is based on the theory that “mere repetition does not imply veracity.” At the same time, if a witness’ testimony is challenged by the other side as the result of “recent fabrication or improper influence or motive,” the witness may be rehabilitated with a previous statement made when the witness had no motive to fabricate.

Prior consistent statements are also admissible for “the limited purpose of allowing the factfinder to consider an inconsistent statement when it is part of the same statement used to impeach the witness, under a rule of completeness rationale.” Id.  Finally, in a much more recent (and still somewhat undefined) exception, prior consistent statements can be admitted for “rehabilitation purposes” where they can be of very clear help to the factfinder in determining whether the witness is truthful and where the proposed evidence is directed only at the particular impeachment that occurred.

For further information on the Prior Consistent Statement hearsay exception in D.C., please click here.

Prior Identification

A statement is not hearsay in D.C. if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is an identification of a person made after perceiving the person.  

For further information on the Prior Identification hearsay exception in D.C., please click here.

Prior Inconsistent Statement

A statement is not hearsay if (1)the declarant testifies at trial and is subject to cross-examination concerning the statement and (2) the statement is inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.  A statement introduced under this exception to the hearsay rule is considered “substantive evidence.”  That is, it can be considered as affirmative proof of the matter asserted.

Prior inconsistent statements can also be used for simple impeachment.  In cases of simple impeachment, however, the prior statement can only be used to attack the credibility of the witness.  It cannot be used as affirmative proof of the statement’s contents.

For further information on the Prior Inconsistent Statement hearsay exception in D.C., please click here.

Prior Recorded Testimony

Previous testimony – testimony that was recorded and under oath — can be admitted in a number of different circumstances in which no exception to the hearsay rule is required. It can be admitted, for example, to prove an act of perjury, to show that testimony against the accused furnished the motive for retaliation against the witness, to refresh recollection, or to impeach a witness at the present trial by proving that earlier testimony was inconsistent.  It can also be offered as hearsay under another exception (e.g., admission of a party-opponent or past recollection recorded) assuming the proponent of evidence can satisfy the requirements of that other exception. 

In order to introduce prior recorded testimony as an exception to the hearsay rule in D.C., the proponent of the evidence needs to satisfy four requirements.  First, the proponent needs to prove that the declarant is unavailable at trial.  Second, the former testimony must have been given under oath or affirmation in a legal proceeding.  Third, the issues in the two proceedings must have been substantially the same. Finally, the proponent needs to prove that the party against whom the testimony is now offered had the same opportunity and motivation to cross-examine the declarant at the former proceeding.

For further information on the Prior Recorded Testimony hearsay exception in D.C., please click here.

Public Records

A public record is admissible in D.C. as an exception to the hearsay rule when (1) the facts stated in the document are within the personal knowledge and observation of the recording official and (2) the document is prepared pursuant to a duty imposed by law or implied by the nature of the office.

For further information on the Public Records hearsay exception in D.C., please click here.

FREQUENTLY ASKED QUESTIONS (FAQs) ON HEARSAY

Can a photograph be hearsay?

Whether a photograph is hearsay would depend on two factors.  First, was it intended as an assertion when it was taken?  Second, is it now being offered for its truth?

Say, for example, that the defendant wants to prove that there are leaves on a particular tree that would have obscured the view of an eyewitness.  Assuming the defendant can authenticate the photograph, it is doubtful whether the government could keep the evidence out as hearsay.  A photograph is usually passive, not assertive, and therefore would not typically constitute hearsay.  There would be nothing assertive, for example, about a photograph taken of the tree by a surveillance camera.

The court might come to a different conclusion if the photograph had been taken by the defendant’s investigator with the specific purpose of introducing it at trial.  As the Hearsay Handbook puts it, “it is possible for a photograph, particularly one that is posed for purposes of litigation, to be hearsay.”  The assertion would be that the leaves on the tree obscured the view, and it would be offered to prove the truth of the assertion depicted. 

Can silence be hearsay?

An assertion can include non-verbal conduct.  Nodding, for example, would indicate yes.  Shaking one’s head would communicate no.  Both would be assertions.  So too would pointing a finger to identify a suspect in a line-up. As McCormick on Evidence § 250 puts it, “non-verbal conduct may be just as assertive as words.” If someone raised her hand in response to the question as to who was responsible, “no one would contend that this gesture could be treated as different from an oral or written statement.”

It might be different, however, if the response to this same question – “who did this?” – was silence. Silence is passive and, in this case, it would not express or communicate anything.  Therefore, it would not be hearsay. 

By contrast, there might some circumstances in which a person’s silence could be interpreted to communicate something.   For example, silence in response to the traditional challenge “speak now or forever hold your peace” during a wedding ceremony could be interpreted to communicate assent.  If offered to prove that the “declarant” endorsed the union, it could constitute hearsay, thereby requiring the proponent of the evidence to introduce it through an exception to the hearsay rule.  

Can a receipt be hearsay?

A receipt is unquestionably an out-of-court declaration. Whether it constitutes hearsay would depend on the purpose for which it is being offered. For example, using a receipt to prove the value of an item at issue in a shoplifting case would be to assert that value as the truth.  This would be hearsay.  It would also be hearsay if the proponent of the evidence were using the receipt to show that payment had been made.

\At the same time, other uses of the receipt might not constitute hearsay.  It would not be hearsay, for example, if the proponent of the evidence offered the receipt to prove that the person whose identifying information was on the receipt lived in the room in which the receipt was found. In this case, the proponent of the evidence would not be offering any information contained on the receipt – price, date, etc. – as true.  Instead, the receipt would serve as circumstantial evidence of ownership.

Are depositions hearsay?

A deposition is a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for discovery purposes or for later use in court. As such, it would appear to be quintessential hearsay (i.e., an out-of-court declaration that is asserted for the truth of the matter) and would only be admissible if (1) it were offered for a non-hearsay purpose or (2) it satisfied the “prior recorded testimony” or some other exception to the hearsay rule. 

Previous testimony that was recorded and under oath can be admitted in a number of different circumstances in which no exception to the hearsay rule is required.  It can be admitted, for example, to prove an act of perjury, to show that testimony against the accused furnished the motive for retaliation against the witness, to refresh recollection, or to impeach a witness at the present trial by proving that earlier testimony was inconsistent. 

In cases in which testimony from the deposition is offered as substantive evidence to prove the truth of the matter asserted, it would need to meet the requirements of a hearsay exception, most probably the exception for “prior recorded testimony.” 

Can hearsay be used to impeach?

Whether or not an out-of-court statement is hearsay depends on the purpose for which it is offered. If it is offered to prove the truth of the matter, it is hearsay.  If offered only to impeach (i.e., discredit) a witness, then it is by definition not hearsay. 

Say, for example, that a witness for the government testifies at trial that the light was red at the time of the accident.  At an earlier hearing, the witness admitted under oath that she was distracted by other things and did not really get a good look.  If the defense seeks to confront her with this earlier testimony, this would be simple impeachment.  The testimony is not being introduced to prove the truth of the matter asserted (that is, whether the light was red or green).  Instead, the testimony is being used to show that the witness’ testimony at trial is unreliable:  She does not know if the light was red or green.  This is not hearsay. 

By contrast, assume the defense seeks to introduce earlier sworn testimony by the witness that the light had been green at the time of the accident.  In this case, the defense not only wants to show that the witness is a liar through impeachment, it also wants to introduce the former statement as substantive evidence proving that the light was in fact green.  Because the evidence is being offered for the truth of the matter asserted, it now meets the definition of hearsay.  It would therefore need to satisfy the requirements of a hearsay exception – “prior recorded testimony” in this case – in order to be admitted. 

Can a witness’s own statement be hearsay?

Yes.  If a witness testifying at trial made a prior statement that a party would like to introduce and that statement was intended as an assertion and is now being offered as substantive evidence to prove the truth of the matter, then the statement would still be hearsay.  It is immaterial whether or not the witness is present in court to be cross-examined with respect to the earlier statement. Therefore, the witness’ prior statement could only be admitted pursuant to a valid exception to the hearsay rule.