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Hearsay

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Hearsay is a general rule of evidence that prohibits the use of testimony or other otherwise admissible written evidence where a statement made by another person is presented for use as proof of the fact so stated. The rule is based on the assumption that all testimony in court should be subject to cross-examination and that if a statement is meant to be used as proof, the person who made the statement must provide direct testimony of the statement.

For example, if Jane wants to testify in court that "Harry told me that he saw Alice kill Tommy", it would be impermissible hearsay to enter this statement into evidence to support the contention that Alice killed Tommy. If Alice were on trial for Tommy's murder, that statement would properly be excluded. However, it would not offend the hearsay rule to enter it into evidence to prove the contention that Harry said "I saw Alice kill Tommy". If Alice were suing Harry for slander, it would be entirely appropriate to admit Jane's testimony.

What makes hearsay such a challenging rule of evidence is that there are many exceptions to this general rule. The number and scope of exceptions usually mean that there are probably as many situations where evidence that meets the basic requirements of the hearsay rule are nevertheless admissible. Here are the major exceptions:

  • Business records - documents commonly kept in the normal course of business are admissible without being qualified by a witness.
  • Prior inconsistent statement - a witness can be challenged with previous testimony, statements, or documents prepared by them when they are inconsistent with the witnesses's current testimony.
  • Dying declaration - a statement made by a person just before death when they are under the apprehension of death is admissible for its truth
  • Declaration against interest - a statement made out of court is admissible for its truth if it would expose the declarant to liablity.
  • Confession - in many jurisdictions (but not all), an out-of-court admission of guilt of a criminal offence is admissible in court proceedings as proof that the person committed the crime

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