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Hearsay Rule

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The purpose of this paper is to discuss about “Hearsay Rule” embodied under Article VIII, Rule 801 of the Republic Rules of Evidence. I will attempt to discuss the meaning of Hearsay and the dangers of hearsay testimony. Hearsay is defined as a statement taken from out-of-courts in writing or oral to be presented as proof of evidence to assert the truth of the matter as evidence. Hearsay is not admissible in court unless it is supported by circumstantial evidence in the interest of justice upon the discretion of the prosecutor. I will discuss the rule against hearsay and the exclusions from hearsay, regardless of whether the declarant is present or not.

Under Article XIII of the Federal Rules of Evidence No. 801, “Hearsay” is defined as a voluntary statement made by the declarant other than the witness in evidence asserting the truth of a statement made outside the court trial or hearing. Suffice it to say, hearsay as a rule is not admissible in court as a valid statement hence it is considered null and void unless otherwise allowed by the court as an exception to the rule and exemption from that rule thereby allowing hearsay testimony based on the statement made by the complainant.  Second, hearsay is considered legal and binding if the second party takes oath in court and testifies as to the credibility of his/her assertion and made it in writing or orally on the course of event and the time it happened (Hinkle et al).

An “out-of-court” declaration may be admissible called “declaration against interest” if said testimony was an assertive statement. Nevertheless, “out-of-court” statements should be taken under oath by the second party subject for approval upon the judge’s discretion (FRE – Rule 801). Hearsay is usually done either in writing by the witness or orally during interrogation (Steven, M – 2007).  Hearsay is therefore a statement asserted by the defendant against the witness to escape from getting convicted. The witness may face confusing situation during cross-examination if he/she is merely fabricating a story. Direct cross-examination of the witness will catch him/her off-guard when conflicting ideas occur. The lawyer of the defendant may try to “inject” commentaries to the declarant’s statement to confuse and discredit the witness. This is one of the most difficult situations faced by many practitioners. At the same time, this is also the losing point of the complainant if there are some inconsistencies made by the “declarant”. Direct statement offered to prove a certain incident is very hard to disprove. Say, Witness A was a witness to what Witness B (declarant) had declared. This is very strong evidence presented against the defendant. On the other hand, inconsistencies during cross-examination through hearsays alone could be very dangerous due to the following reasons: 1) Ambiguity, 2) Insincerity, 3) Incorrect Memory and 4) Inaccurate Memory. This indicates that the declarant may not be available for interrogation. Therefore, “out-of-court statements” may not be reliable enough to win a certain case.

There are two rules for the exception. One is when a person utters certain statement during a startling event. Secondly, when a statement was being made by the declarant under stress of excitement near the time when the act took place. This is called “excited utterance” exception under number 2 of Article VIII of FRE- Rule 803.

Below is a sample diagram showing testimonial triangle depicting O’s statement will be considered hearsay if the “trier” or “fact-finder” travels from point A to B going down to C. testified that the light was broken (A).  O (declarant) once testified that the light was broken. During the cross-examination, O (declarant) was no longer certain but it was recorded earlier when O was so agitated in giving the details after the act was committed. At this point in time, the statement made by O was credible enough leading to point B on the belief that the light was indeed broken. Psychologically, a person is telling the truth when he/she is at the height of excitement and blurting what occurred without thinking that he/she will turn out to be the witness. In conclusion, O’s statement was reliable that the light was broken (shown as C). O’s statement is not hearsay (Steven, E. – 2007)

Exclusions from “Hearsay” are those statements made by the declarant testifying to the incident in question subject to cross-examination. A statement is not considered “hearsay” if the declarant’s testimony was done under oath or under penalty of perjury during trials and hearings in court or in case of deposition. Further, a statement is not considered “hearsay” if the declarant identifies the same individual as testified prior to the trial. This proves that the assertion made by the declarant is not considered “hearsay”.

The rule against hearsay has lots of exceptions that may be admissible in court without the presence of the declarant. There are about 24 exceptions under the federal rules (FRE- Rule 803) which do not require proofs of evidence even without the declarant, viz:

  1. Present Sense Impression – A statement made by the declarant describing a situation                                                 which allegedly took place.
  2. Excited Utterance – A startling statement made by the declarant who was still under                                       stress on certain condition when the event happened.
  1. Then-Existing Mental, Emotional, or Physical Condition – A statement made by the declarant’s present state of mind or physical condition when a certain event happened.
  2. Statement Made for Medical Diagnosis or Treatment – A statement made as to medical history of certain condition on how it occurred and what was its cause.
  3. Recorded Recollection – A statement made by the witness once but couldn’t recall the whole situation in an accurate manner. Second, it could be a statement made by the witness when a certain event was still fresh in his/her memory vividly describing how it occurred. If accepted, the recorded statement may be read and marked as an exhibit as one of the underlying evidences.
  4. Records of a Regularly Conducted Activity – A recorded history of certain event or condition with knowledgeable person or has been officially recorded during official business of company organization or on official calls and/or for private use only. If the recording was done regularly, the custodian may be a qualified witness or can issue a certification as to the authenticity of information gathered.
  5. Absence of a Record of a Regularly Conducted Activity – A recorded event can be made as proof of evidence that an alleged complaint did not take place or even existed.
  6. Public Records – Official records of office activities are trustworthy evidences.
  7. Public Records of Vital Statistics - Legal records of birth, death and marriage are valid proofs of evidences.
  8. Absence of a Public Record – A testimony or certification certifying that such record in question does not actually exist.
  9. Records of Religious Organizations Concerning personal or Family History – Recorded history of religious organization such as birth, baptismal, ancestry, marriage, divorce, death, family tree, etc.
  10. Certificates of Marriage, Baptism and similar ceremonies – Legal records of ceremonies at the time the act was made as certified by the person performing the act.
  11. Family records – These are legal facts of family records that may be taken a legal evidence without being contested such as the Bible, family tree, representations, ring engraves, inscriptions on portraits, urn or burial markers.
  12. Records of Documents That Affect an Interest in Property - Legal documents of properties are legal and binding if they are duly signed by its owner with copies furnished and archived in public office.
  13. Statements in Documents That Affect an Interest in Property – A statement contained in a document concerning its property is considered authentic unless contested following due process of law.
  14. Statements in Ancient Documents – An authentic documentary statement archived within 20 years.
  15. Market Reports and Similar Commercial Publication – Public records such as receipts, lists, yellow pages or compilations are considered reliable sources as evidence.
  16. Statements in Learned Treatises, Periodicals or Pamphlets – The statement comprised in treatise, periodical or pamphlet may be examined by an expert as required by the court to support evidences but not as an exhibit.
  17. Reputation Concerning Personal or Family History – A statement of family lineage can be considered solid evidences of family reputation in the community.
  18. Reputation Concerning Boundaries or General History – A family background is greatly considered in case of any disputes affecting land boundaries or map relocations.
  19. Reputation Concerning Character – Character check of an individual.
  20. Judgment of a Previous Conviction – Evidence signifying final decision of conviction after legal proceedings or a guilty plea has been made; a conviction with death penalty or one year imprisonment; the evidence is acceptable if it is relevant for the judgment and when the prosecutor offer the final conviction in criminal cases aside from being impeached, the judgment would be against the respondent pending an appeal as the case may be but it does not affect in any way its admissibility.
  21. Judgments Involving Personal, Family or General History or a Boundary – An adjudication permitting to establish matters based on evidence presented in connection with private matters, general history or boundaries.
  22. The “Catch All” Rule or other exceptions –Otherwise known as Residual Exceptions, hearsay may be admissible so long as it will serve the purpose in the interest of giving fair judgment. This has been transferred to Rule 807.

801 of FRE describes that a court must establish the declarant’s intention to assert whether an act of communicating is considered a statement. In as much that the declarant is often unavailable when out-of-court information is presented as evidence in which courts tend to depend on the circumstantial evidence by the declarant’s assertion. There is no certainty on the declaration of the witness which could possibly be used as evidence upon the judge’s discretion.   Current Rule 801 was created to transfer the yoke to the adversary of the out-of-court statement to attest that the declarant exerted more effort instead of the proponent who generally have pertinent proof of evidence and that the unavailability of the declarant during cross-examination is an indication that no effort has been done to present such assertions. On the premise that there was no intention to oblige the declarant to personally answer during cross-examination is rather biased and not in accordance with what would naturally be assumed that could obfuscate the hearsay rule (American Advisory – AUCL).


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