Hearsay and circumstances of its admissibility - Right to confront witnesses

Learning Outcomes

After reading this article, you will be able to define hearsay, identify when hearsay is admissible, and explain the constitutional right to confront witnesses in criminal cases. You will understand the main hearsay exceptions, the meaning of "testimonial" statements, and how the Confrontation Clause limits the use of hearsay in criminal trials. You will be able to apply these rules to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules governing hearsay and the constitutional right to confront witnesses. This article covers:

  • The definition of hearsay and what is not hearsay.
  • The main exceptions to the hearsay rule.
  • The Confrontation Clause and its impact on hearsay admissibility in criminal cases.
  • The distinction between testimonial and non-testimonial statements.
  • The requirements for admitting prior statements and unavailable witness testimony.
  • The relationship between hearsay exceptions and the right to confrontation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is NOT hearsay under the Federal Rules of Evidence?
    1. A witness testifies to what she heard another person say in court during the current trial.
    2. A witness testifies to what a declarant said out of court, offered to prove the truth of the matter asserted.
    3. A witness testifies to what a declarant said out of court, offered to show the effect on the listener.
    4. A witness testifies to what a declarant wrote in a letter, offered to prove the truth of the matter asserted.
  2. Under the Confrontation Clause, a testimonial statement by an unavailable witness may be admitted in a criminal trial only if:
    1. The statement falls under a hearsay exception.
    2. The defendant had a prior opportunity to cross-examine the declarant.
    3. The statement was made to a friend during an emergency.
    4. The declarant is unavailable for any reason.
  3. Which of the following is most likely to be considered "testimonial" for Confrontation Clause purposes?
    1. A 911 call describing an ongoing emergency.
    2. A statement made to police during a routine investigation after the emergency has ended.
    3. A statement made to a friend about a crime.
    4. A business record prepared in the ordinary course.

Introduction

Hearsay is a central topic in evidence law and a frequent source of MBE questions. The rules on hearsay determine when out-of-court statements may be admitted for their truth. In criminal cases, the Sixth Amendment right to confront witnesses adds a constitutional layer, restricting the use of certain hearsay against defendants. Understanding both the evidentiary rules and the constitutional requirements is essential for MBE success.

What Is Hearsay?

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. The general rule is that hearsay is inadmissible unless an exception applies.

Key Term: Hearsay An out-of-court statement offered to prove the truth of the matter asserted in the statement.

Not all out-of-court statements are hearsay. If a statement is offered for a purpose other than proving its truth—such as to show the effect on the listener, notice, or the declarant’s state of mind—it is not hearsay.

Key Term: Not Hearsay (Purpose) An out-of-court statement is not hearsay if offered for a purpose other than its truth, such as notice, effect on listener, or state of mind.

Statements made by a party and offered against that party (opposing party statements) are also not hearsay under the Federal Rules.

Key Term: Opposing Party Statement A statement made by a party and offered against that party; not hearsay under the Federal Rules.

Hearsay Exceptions

Even if a statement is hearsay, it may be admissible if it falls under a recognized exception. Common exceptions include:

  • Present sense impression
  • Excited utterance
  • Statements for medical diagnosis or treatment
  • Business records
  • Statements against interest
  • Dying declarations

Some exceptions require the declarant to be unavailable; others do not.

Key Term: Hearsay Exception A rule allowing certain hearsay statements to be admitted, even though they are out-of-court statements offered for their truth.

The Right to Confront Witnesses

In criminal prosecutions, the Sixth Amendment guarantees the accused the right “to be confronted with the witnesses against him.” This is known as the Confrontation Clause.

Key Term: Confrontation Clause The Sixth Amendment right of a criminal defendant to confront and cross-examine witnesses against them.

The Confrontation Clause restricts the use of hearsay in criminal trials, especially when the statement is "testimonial" in nature.

Testimonial vs. Non-Testimonial Statements

A statement is testimonial if it was made with the primary purpose of establishing or proving facts for use in a criminal prosecution. Examples include statements made during police interrogations after an emergency has ended, affidavits, and prior testimony.

Key Term: Testimonial Statement A statement made primarily to establish or prove facts for use in a criminal prosecution.

Non-testimonial statements, such as those made during an ongoing emergency or to someone not connected to law enforcement, are not subject to the same Confrontation Clause restrictions.

Admissibility of Testimonial Hearsay

Testimonial hearsay by an unavailable declarant may be admitted against a criminal defendant only if the defendant had a prior opportunity to cross-examine the declarant.

Key Term: Prior Opportunity for Cross-Examination The defendant must have had a previous chance to cross-examine the declarant for testimonial hearsay to be admissible in a criminal case.

Admissibility of Non-Testimonial Hearsay

Non-testimonial hearsay is governed by the ordinary rules of evidence. The Confrontation Clause does not bar its admission if it falls under a hearsay exception.

Worked Example 1.1

A witness in a robbery trial testifies that the victim told her, "The man who robbed me was wearing a red jacket," shortly after the crime. The prosecution offers this statement for its truth, and the victim is unavailable.

Answer: If the statement is considered testimonial (e.g., made to police for prosecution), it is inadmissible unless the defendant had a prior opportunity to cross-examine the victim. If made in the course of an ongoing emergency or to someone not connected to law enforcement, it may be admissible under a hearsay exception.

Worked Example 1.2

During a 911 call, a caller describes an ongoing assault. The recording is offered at trial, but the caller does not testify.

Answer: Statements made during an ongoing emergency are generally non-testimonial and may be admitted if they fit a hearsay exception. The Confrontation Clause does not bar their admission.

Exam Warning

Statements made to police after an emergency has ended are likely to be considered testimonial. If the declarant is unavailable and the defendant had no prior chance to cross-examine, admitting such statements violates the Confrontation Clause.

Revision Tip

On the MBE, always ask: Is the statement offered for its truth? Is it testimonial? Was there a prior opportunity for cross-examination? Apply the correct rule.

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay is an out-of-court statement offered for its truth and is generally inadmissible unless an exception applies.
  • Not all out-of-court statements are hearsay; purpose matters.
  • Opposing party statements are not hearsay under the Federal Rules.
  • Hearsay exceptions allow certain statements to be admitted even if hearsay.
  • The Confrontation Clause restricts the use of testimonial hearsay in criminal cases.
  • Testimonial statements require a prior opportunity for cross-examination to be admissible if the declarant is unavailable.
  • Non-testimonial hearsay is not barred by the Confrontation Clause if it fits an exception.

Key Terms and Concepts

  • Hearsay
  • Not Hearsay (Purpose)
  • Opposing Party Statement
  • Hearsay Exception
  • Confrontation Clause
  • Testimonial Statement
  • Prior Opportunity for Cross-Examination
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