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When pursuing a personal injury claim, it’s natural to wonder which statements, records, or recollections can be used as evidence in court. This is where understanding what hearsay becomes crucial.
For anyone seeking the support of personal injury attorneys, it’s essential to grasp the basics of hearsay and its impact on personal injury cases.
At Craig Swapp & Associates, our attorneys often see questions about what information can be presented to a judge or jury and what must be excluded by law.
Below, we break down the definition of hearsay, the hearsay rule, and what statements might be allowed or excluded from a personal injury trial.
Hearsay refers to a statement made outside the courtroom that is offered in court to prove the truth of what it asserts.
In other words, if someone testifies, “My neighbor told me the light was red,” the court must decide whether that statement can be considered reliable evidence of what color the light actually was.
The official legal definition comes from the Federal Rules of Evidence (Rule 801), which states:
“Hearsay is a statement that:
Put simply: if the statement was made outside of court and is used to prove what it says, it’s probably hearsay.
If you’re wondering why courts are so strict about hearsay, the answer lies in the need for reliability and fairness. The hearsay rule exists to ensure that the evidence used in court is trustworthy and that both sides have a fair chance to challenge the evidence.
One of the most important principles in law is the right to confront and cross-examine witnesses. If a witness says, “My friend saw the accident and told me what happened,” the other side can’t question the friend directly to test their memory, perception, or honesty. Hearsay keeps out these secondhand statements so that only evidence that can be scrutinized by both sides is admitted.
Memories can fade, rumors can spread, and even honest mistakes can occur. The hearsay rule guards against unreliable evidence that might sway a judge or jury unfairly. For example, if someone repeats a rumor about the cause of an accident, that’s not as reliable as direct testimony from a person who actually witnessed the event.
Attorneys understand that excluding hearsay is also about fairness. The rules give both sides equal footing and reduce the risk of decisions based on unreliable or untested statements.
Below are common scenarios that illustrate what counts as hearsay.
Common hearsay examples in personal injury cases:
For injury victims working with personal injury attorneys, it’s helpful to know that simply quoting what others have said is not enough. The courts look for direct, first-hand testimony. Lawyers often advise clients to keep good records and be prepared to testify about what they personally saw, heard, or experienced.
The hearsay rule is a foundational principle in courts across the country. Each state’s evidence code is modeled closely after the Federal Rules of Evidence, though there may be important local nuances.
The Federal Rules of Evidence (FRE), especially Rules 801 through 807, set out the hearsay rule and its exceptions. The rules define what is hearsay, what is not, and when hearsay may be allowed.
FRE 802 is clear:
“Hearsay is not admissible except as provided by these rules…”
This means that hearsay is generally barred unless an exception applies.
While the federal definition applies in the U.S. District Courts, state courts may have small differences. For example, Oregon’s rules closely mirror the federal rules, while Washington may have additional exceptions or local precedents that injury lawyers need to know.
Lawyers must be able to distinguish between admissible and inadmissible statements. They are responsible for objecting to hearsay, arguing for exceptions, and ensuring that clients’ claims are supported by reliable evidence.
While hearsay is generally inadmissible, there are important exceptions. Courts recognize that some statements are reliable enough to be considered even though they are made outside of court.
FRE 804 applies only when the declarant (the person who made the statement) is unavailable to testify in court. “Unavailability” can mean the declarant is deceased, too ill to appear, protected by privilege, or cannot be found despite reasonable efforts.
If a witness gave sworn testimony at a prior hearing, trial, or deposition, and the opposing party had a similar motive and opportunity to question the witness, that testimony may be introduced in the current trial. This is common when a witness has died or moved out of reach before the new trial.
A statement made by someone who believes their death is imminent, describing the cause or circumstances of what they believe will result in their death, can be admitted in both civil cases and homicide prosecutions.
A statement so clearly against the declarant’s own legal or financial interest that a reasonable person wouldn’t have made it unless it was true. The rationale is that people don’t usually make statements that would harm themselves unless the statements are accurate.
Statements about the declarant’s own birth, adoption, marriage, divorce, legitimacy, ancestry, or similar facts, or about the family history of close relatives, are admissible. This exception covers facts that people are uniquely qualified to know about their own lives or family.
FRE 803 exceptions apply regardless of whether the declarant is available to testify. These statements are considered reliable for various reasons, and courts allow them to be used as evidence.
This is a statement made while the event is happening or immediately after. The immediacy helps ensure accuracy.
Statements made in response to a shocking or stressful event are considered reliable because people are less likely to fabricate details when startled.
Statements revealing what a person was thinking, feeling, or experiencing physically or emotionally at the time. These statements are often important for establishing pain, intent, or motive.
Statements made to doctors, nurses, or medical personnel for the purpose of obtaining treatment, including descriptions of symptoms, pain, and sometimes the cause, are considered trustworthy because people have a strong incentive to tell their providers the truth.
If a witness once had knowledge about a matter but now can’t recall details, a record or memo made while the event was still fresh in their memory can be read into evidence.
Sometimes a document or record contains more than one out-of-court statement – “hearsay within hearsay.” In these situations, every layer of hearsay must fit an exception or be otherwise not excluded.
If a crucial piece of evidence contains hearsay, Attorneys can often find an exception that applies, ensuring that important information reaches the jury.
Understanding what is hearsay and what isn’t is a fundamental part of any trial.
Lawyers know that evidence is the backbone of any case. When building a claim for medical costs, lost wages, or pain and suffering, the information presented must meet strict legal standards.
Hearsay rules protect against unreliable information. If a witness tries to repeat something they heard from someone else, the court usually blocks it, unless an exception applies.
At Craig Swapp & Associates, our team of personal injury attorneys has extensive experience handling cases in Utah, Idaho, Washington, Montana, Oregon, Wyoming, Colorado, and Arizona. We know the ins and outs of the hearsay rule, its exceptions, and the local differences that can impact your case.
If you’ve been injured and have questions about what is hearsay, which evidence is allowed, or how to build the strongest claim, call us today at 866-308-3822 to schedule your free consultation or send us a message about your case by answering our online form here.
Written By: Ryan Swapp Legal Review By: Craig Swapp