Commonly Confused Evidence Rules: Hearsay, Exceptions, Character, Impeachment and Rule 403

Hearsay versus non-hearsay

Hearsay is an out-of-court statement offered to prove the truth of what it asserts. If the statement is offered for something else, such as to show notice, effect on the listener, or that the words were said at all, it is not hearsay. "The brakes are bad," said to the owner, offered to show the owner knew of the problem, is not hearsay. Offered to show the brakes were bad, it is.

The trap is looking at the words, not the purpose. Always write down the relevant fact you want to prove and ask whether the statement's truth is needed to prove it.

Statements that are defined as non-hearsay

Under the Federal Rules of Evidence, an opposing party's own statement offered against that party is not hearsay, and neither is a prior inconsistent statement made under oath at a proceeding, nor a consistent statement offered to rebut a charge of recent fabrication. Candidates often call these exceptions. They are definitional exclusions, and the analysis is a different one.

Present sense impression versus excited utterance

A present sense impression describes or explains an event while the speaker is perceiving it or immediately after. It rests on the lack of time to fabricate. An excited utterance is a statement about a startling event made while the speaker is under the stress of excitement caused by it. It rests on stress, and it can come a little later, and it can describe the event's effects. The first requires a description of what is being seen. The second requires a startling event and continuing stress.

Character evidence versus impeachment

Character evidence offered to show that a person acted in accordance with a trait is generally barred, subject to exceptions such as a criminal defendant offering a pertinent trait. Impeachment uses evidence to attack a witness's credibility, and it has its own rules, such as a conviction for a crime involving dishonesty, or a felony subject to balancing, and specific instances of untruthfulness on cross-examination. The same fact, such as a prior fraud, might be inadmissible as propensity and admissible to impeach a witness, so check each purpose.

Relevance versus unfair prejudice

Evidence is relevant if it makes a fact of consequence more or less probable. Rule 403 lets a court exclude relevant evidence when its probative value is substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless cumulative evidence. The standard is "substantially outweighed," which favors admission. Do not treat 403 as a rule that excludes anything damaging. Damaging is the point of most evidence.

The Confrontation Clause and hearsay

In a criminal case, testimonial statements by a person who does not testify are barred unless the witness is unavailable and the defendant had a prior chance to cross-examine. A statement can satisfy a hearsay exception and still violate the Confrontation Clause. Ask both questions in criminal cases, and note that the clause applies only to testimonial statements.