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Hearsay Exceptions: Availability Of Declarant Immaterial, Nicole Brown Simpson's Journals: Inadmissible As Hearsay

A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.

It is the job of the judge or jury in a court proceeding to determine whether evidence offered as proof is credible. Three evidentiary rules help the judge or jury make this determination: (1) Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful. (2) The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand. (3) The witness is subject to cross-examination at the option of any party who did not call the witness to testify.

In keeping with the three evidentiary requirements, the Hearsay Rule, as outlined in the FEDERAL RULES OF EVIDENCE, prohibits most statements made outside a courtroom from being used as evidence in court. This is because statements made out of court normally are not made under oath, a judge or jury cannot personally observe the demeanor of someone who makes a statement outside the courtroom, and an opposing party cannot cross-examine such a declarant (the person making the statement). Out-of-court statements hinder the ability of the judge or jury to probe testimony for inaccuracies caused by AMBIGUITY, insincerity, faulty perception, or erroneous memory. Thus, statements made out of court are perceived as untrustworthy.

Hearsay comes in many forms. It may be a written or oral statement; it also includes gestures. Essentially anything intended to assert a fact is considered a statement for the purposes of the Hearsay Rule. A nodding of the head may be a silent assertion of the word yes. A witness pointing to a gun may be asserting, "That is the murder weapon." Even silence has been accepted as a statement, as when a passengers' failure to complain was offered to prove that a train car was not too cold (Silver v. New York Central Railroad, 329 Mass. 14, 105 N.E.2d 923 [1952]).

Not all out-of-court statements or assertions are impermissible hearsay. If an attorney wishes the judge or jury to consider the fact that a certain statement was made, but not the truthfulness of that statement, the statement is not hearsay and may be admitted as evidence. Suppose a hearing is held to determine a woman's mental competence. Out of court, when asked to identify herself, the woman said, "I am the pope." There is little question that the purpose of introducing that statement as evidence is not to convince the judge or jury that the woman actually is the pope; the truthfulness of the statement is irrelevant. Rather, the statement is introduced to show the woman's mental state; her belief that she is the pope may prove that she is not mentally competent. On the other hand, a defendant's out-of-court statement "I am the murderer," offered in a murder trial to prove that the defendant is the murderer, is hearsay.

The Federal Rules of Evidence outline the various types of statements that are excluded by the Hearsay Rule, and are thus admissible in court. These exceptions apply to circumstances believed to produce trustworthy assertions. Some hearsay exceptions are based on whether the declarant of the statement is available to testify. For example, a witness who has died is unavailable. A witness who claims some sort of testimonial privilege, such as the ATTORNEY-CLIENT PRIVILEGE, is also unavailable to testify, as is the witness who testifies to lack of memory regarding the subject matter, or is too physically or mentally ill to testify. These definitions fall under Rule 804 of the Federal Rules of Evidence. There are also situations where hearsay is allowed even though the declarant is available as a witness. These situations are outlined under Rule 803 of the Federal Rules of Evidence.

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