When a witness begins to testify about what another person said, and the statement is offered for its truth, opposing counsel objects by stating "Objection, hearsay." The judge then determines whether the statement meets the definition of hearsay and whether any exception applies. The offering attorney must articulate the specific exception (e.g., excited utterance, business record, statement against interest) to overcome the objection. If sustained, the testimony is stricken or prevented. If overruled, the objecting party preserves the issue for appeal. Hearsay analysis often requires examining the purpose for which the statement is offered, as statements offered for non-hearsay purposes (e.g., notice, effect on listener, verbal acts) are not excluded.
Attorney: "What did your neighbor tell you about the accident?" Opposing Counsel: "Objection, hearsay." Judge: "Sustained."
Attorney: "Your Honor, the statement qualifies as an excited utterance under Rule 803(2) — the declarant made the statement while under the stress of the startling event."
Attorney: "The statement is not offered for its truth but to show the effect on the listener and explain why my client took the actions she did."
Students often object to all out-of-court statements as hearsay. Remember that a statement is only hearsay if offered to prove the truth of the matter asserted. The same statement may be admissible for a non-hearsay purpose.
Crawford v. Washington, 541 U.S. 36 (2004)
Held that the Confrontation Clause bars admission of testimonial hearsay in criminal cases unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
Ohio v. Clark, 576 U.S. 237 (2015)
Held that statements by a three-year-old child to a teacher identifying his abuser were not testimonial hearsay, allowing admission without confrontation concerns.
Williamson v. United States, 512 U.S. 594 (1994)
Narrowed the statement-against-interest exception (Rule 804(b)(3)) by holding that only truly self-inculpatory portions of a narrative qualify, not collateral statements that implicate others.
When should I raise a hearsay objection?
Raise a hearsay objection when a witness is asked to testify about an out-of-court statement and the statement is being offered to prove the truth of the matter asserted. You must object promptly — before the witness answers — or the objection may be waived. Consider whether an exception might apply before objecting to avoid appearing unprepared.
What are the most common hearsay exceptions used at trial?
The most frequently invoked exceptions are present sense impression (Rule 803(1)), excited utterance (Rule 803(2)), then-existing mental/emotional/physical condition (Rule 803(3)), statements for medical diagnosis (Rule 803(4)), business records (Rule 803(6)), and former testimony (Rule 804(b)(1)). Each has specific foundational requirements.
How do I respond when opposing counsel raises a hearsay objection?
Respond by arguing either that the statement is not hearsay (it is not offered for the truth of the matter asserted, or it qualifies as a non-hearsay admission under Rule 801(d)), or that a recognized exception applies. Be prepared to articulate the specific rule and lay the necessary foundation.
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