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Exceptions to the Rule of Hearsay

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    Exceptions to the Rule of Hearsay

    In any legal system, there is a level into which hearsay will enter the evidential equation. However, it poses a number of problems when hearsay evidence is admitted to the court in order to argue a case. A case cannot rely entirely on the use of hearsay evidence, although it is crucial in some cases to the examination of the case. Hearsay is defined as “a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.”(The Free Dictionary, 2008). The legal procedure in a court of law pertaining to hearsay follows a process of three levels: first the witness must swear (under oath) that their testimony is truthful; secondly the witness must be present in person for the jury to hear their direct evidence and thirdly the witness must be available for cross-examination by any party involved in the hearing, both defendant and prosecution (The Free Dictionary, 2008). Hearsay in this respect is widely is used where there are exceptions to the rule of admittance of hearsay in US courts.

    Three of these exceptions will be discussed in this paper with reference to three different cases where hearsay has been used. We look specifically at the admittance of Present Tense Impression, which deals with the admittance of statements where the evidence is not colored by perceptive changes and emotion; The admittance of Business Records as evidence to prove the use of residences as a place for clandestine contraband trade and the admittance of Learned Treatise as the purposeful use of authoritative sources. We also look at the exception to the rule with regards to the witness being unavailable for the court case. In this case there are a number of variables that define whether or not a witness is wilfully absent or has reason to be unavailable. In this case we discuss the admittance of medical documents that prove the reasonable absence of the declarant.

                The first exception to the Rule of Hearsay to be discussed is that of Present Tense Impression. Present Tense Impression is defined as “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” (The Free Dictionary, 2008). In this case, the statement is made directly after an incident occurred. In this case the example of the Nicole Brown Simpson, a widely publicised and controversial court case that has shaken not only the United States, but the entire world. Nicole’s journals were not admissible in the court as evidence. The prosecution tried to argue that OJ Simpson had murdered his wife after a history of domestic abuse had been apparent. The prosecuting party had found a set of journals in a safe deposit box, where she had evidently kept them. The journals contained evidence about the couple’s troubled relationship (The Free Dictionary, 2008). The journals offered vivid and explicit insight into the physical violence that occurred between OJ and his wife.

    They described his physical violence and threats he had made to her, yet they were not admissible in the court because they constituted hearsay evidence (The Free Dictionary, 2008). In this case the evidence amounted to the same as if it were passed on via a third party who were not present at the trial. The court decided that since Nicole was not present to testify, her evidence could not be corroborated by the testing of her memory or perception (The Free Dictionary). OJ Simpson was acquitted on murder charges against his wife and walked free. Nicole was not present to be cross examined, or be able to give first hand evidence of the writings. The journals therefore were not Present Tense and were subject to severe scrutiny. A number of aspects can be seen as problematic, such as perception. There was no way for the court to determine whether the occurrences in her journal might have been ill-perceived or due to a number of other perceptive and emotional disturbance.  This meant that her ‘testimony’ was tantamount to a oral hearsay and was above all non-challengeable by the defense.

                The case of The United States v. Jaramillo-Suarez, 950 F.2d 1378, 1383 (9th Cir.1991), drug ledgers were admitted as evidence in his charge for drug pedaling. The ledgers were used under the exception for limited purposes to prove that the Suarez residence was being used for drug trade (US vs. Suarez, 1991). This exception to the Rule of Hearsay admits evidential documents that reveal the character of a business or a person. The defense appealed against the use of the ledgers retrieved from the residence at 918 Calle Catavino’s were the appellant resided, on the grounds that it was hearsay evidence. The court dismissed the appeal, defining the ledgers as to be used for limited purposes of proving that the residence was used to do drug trade (US vs. Suarez, 1991). In this case, the law enforcement agents had been informed that the Calle Catavino residence was the source of, if not drug trade, then at least drug stashing. Suarez was not the only one involved in this case however, and the man the police took into custody was named Estrada. When the house was entered, there had been a strong odor of marijuana and a large stash of the drug was found bundled in cellophane in the master bedroom (US vs. Suarez, 1991). The purpose of the ledgers was not needed to prove the existence of marijuana in the household but was admitted as evidence that the drug was used for trading under the hearsay rule exception that is was business records.

                In the case of the United States vs. Acosta – 769 F.2d 721 a witness’ testimony was dismissed as inadmissible evidence because she was unavailable to testify in court. In this case, the witness was unavailable for questioning due to the illness of her child. The court denied access of the testimony to the court because there was no medical documents stating the severity or existence of the child’s illness. The lack of presence of a document stating the that the witness was unavailable for questioning due to the said misfortune of her child rendered her statement invalid and because she was unavailable, like the case of Nicole Simpson, she was not able to: swear her testimony in; give first hand evidence or be cross examined. Medical documents proving the existence of her child’s illness would have been substantial enough to make her testimony admissible to the court (US vs. Acosta, 1981). the definition for an unavailable witness is stated as such: that a witness is unavailable when they refuse to testify in court despite court orders to do so; is unable to be present at the trial; attests to a lack of memory of the statement they have made; is absent from the court without documentation of their whereabouts or the reason why they are absent (US vs. Acosta, 1981).

                The case of Constantino vs. Herzog saw the tragic case of palsy in a new born child. The baby had been delivered with its shoulder caught behind the mothers pubic bone, a medical anomaly called ‘shoulder dystocia’. The appellee charged Hertzog with malpractice (Moenssens, 2000). The defendants rebut of the charge submitted a treatise on videotape that revealed the complexities of dealing with the problem of ‘shoulder dystocia’ but the prosecution objected that the tape was hearsay because the exception to the hearsay rule surrounding treatise was only meant for published articles. The judge deliberated this exception to the rule and admitted the tape as evidence on the grounds that it was made by an authoritative party. In this exception to the rule Learned Treatise are admitted in published form from authoritative journals; periodicals or educational pamphlets (The Free Dictionary, 2008). The argument the prosecution made was denied due to the fact that the information contained on the videotape was seen to be created by a recognized medical expert and authority on the issue, thereby making it part of the learned treatise exception to the rule (Moenssens, 2000). In this case the difference between fact and opinion was distinguished, a necessary process for allowing evidence. In several other cases videotapes were also admitted as learned treatise, such as in the case of Schneider vs. Cessna Aircraft Company. In other cases such as Morrison vs. Stallworth videotapes were not found to be admissible because they were not from an authoritative source (Moenssens, 2000). The problem with hearsay evidence that comes from videotaped evidence is that it can often be misappropriated and also can often be artificial evidence made by non-authoritative parties who claim expert knowledge. For this reason the treatise has to be properly examined and researched. This is not the same for published materials where publication is subject to the knowledge f the writer being noted in the book, paper or otherwise.

                The rule of hearsay is necessary in order to prevent the jury from being swayed by evidence that may be based on emotive, subjective feelings. In this case what would happen is that the witness gives the court a slightly biased version of the story. Hearsay however, has to have exceptions due to the fact that there is not always sufficient forensic evidence with which an offender can be charged. Hearsay therefore has to be strictly controlled. The court admits evidence of hearsay only when the witness from which the evidence was gathered, is present for cross examination and personal in-court statement. Written evidence is also considered hearsay unless the witness is present for questioning in order to ascertain to what degree the witness was affected by emotion or perceptive disturbances. Nicole Simpson’s journals could not be admitted because of the emotional nature of the writing and the fact that she was not present for questioning. Likewise the statement of the witness in the Acosta case could not be used as evidence because she was unable to be cross-examined and did not produce valid documentation of why she could not be present at the trial. In the Suarez case, the drug ledgers were admissible for limited purposes as business records in order to prove that the residence where the drugs were found, was used for nefarious business transactions. The last case of Constantino vs. Hertzog admitted the evidence of videotapes under the exception to the rule by labeling it learned treatise. Hearsay is a necessary but awkward part of evidence in the courts and often has great importance in the decisions made by the jury. It is primarily because of the fluid nature of the jury that Hearsay has to be carefully monitored and specific rules have to apply.


    Moenssens, Andre (ed). (2000). Expert Witnesses: Do You Have Nay Demonstration Videotapes? They May be Admissible In Court Under A New Ruling! Forensic Evidence. Com.

    The Free Dictionary (2008). Hearsay. Farlex.

    US Court of Appeals Cases and Opinions (1981).United States of America, Plaintiff-appellee, v. Tomas Acosta, Defendant-appellant – 769 F.2d 721. (1981).
    United States vs. Suarez.(1991). UNITED STATES of America, Plaintiff-Appellee, v. Martin ENRIQUEZ-ESTRADA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald Roy SELIG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jorge ENRIQUEZ-GALAZ, Defendant-Appellant., 999 F.2d 1355 (9th Cir. 1993). United States Court of Appeals for the Ninth Circuit (July 7, 1993).


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