Two powerful sources of protection for Hoosiers: 1) the Rules of Evidence and 2) the Constitution. State and Federal versions exist for both, and the analysis can be slightly different despite the fact the Federal Constitution sets the low bar for States. This blog explains the Hearsay Rule of Evidence can protect you and how common exceptions can take that protection away. Every great trial attorney uses these protections for the benefit of his client.

What is hearsay?

            “Hearsay” protections are powerful, but your attorney must be precise because there are many exceptions to the hearsay rule. To be hearsay, the evidence must have two components: (1) it must be an out of court statement, i.e., a statement made when the declarant was not testifying at a trial or hearing, and (2) the statements must be offered to prove the truth of the matter asserted. Examples include video statements to police, a written letter to grandma, or what Bob yelled to Sally on the night in question. Stated another way: Any statement out of court is hearsay, even if the speaker is testifying at trial, unless a rule transforms the statement back into non-hearsay or provides an exception. If either occurs, the evidence is admissible to prove that a person is guilty.

To understand why we have hearsay protections, it is important to understand why the rule was created. Hearsay leaves room for people to lie about what others or themselves said in the past. The exceptions are designed to allow hearsay that is less likely to be a lie about what was uttered out of court. When a person is repeating the words of another, which is a common form of hearsay, this breaks from the very principles upon which our nation agreed to give the government power to put us in prison if the government can show we broke its laws. That is, we are supposed to be able to confront people who speak words against us.

If Sally testifies against you at trial that Bob said you were the killer, you don’t get to confront Bob. One of many exceptions might apply that would allow the jury to hear Sally’s testimony about what Bob said, depending on other facts. But these exceptions should be fought. Indeed, a cornerstone of our legal system is testimony subject to adversarial testing. See Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001) (“Trials should principally proceed on the basis of testimony given in court, not statements or affidavits obtained before trial.”) Thus, hearsay—which does not permit such testing—is generally inadmissible. Ind. Evidence Rule 802.

What are common exceptions to the rule against hearsay that would allow the State to put in evidence against a person at trial?

            There are 23 exceptions to the hearsay rule that might apply to any trial, and there are five additional exceptions that might apply when the original declarant (speaker or writer) is unavailable at trial. Compare Evidence Rule 803 with Evidence Rule 804. In addition, under Evidence Rule 801, some hearsay statements are transformed into non-hearsay. This blog covers common exceptions: Recorded Recollection, Present Sense Impression, Excited Utterances under Rule 803. It also covers Rule 801’s Opposing Party’s Statement and a Witness’s Prior Statement under oath. Last, it covers Rule 804 to help people know how to navigate what evidence can be used against you when even when the original speaker is unavailable at trial. In short, this blog outlines the hearsay considerations that our trial attorneys encounter most consistently. As a general background, for the Rule 803 exceptions apply

When can the government use a recorded recollection against me?

            Indiana Rule of Evidence 803(5) A common example of a recorded recollection is when a witness gives a statement to police. In domestic battery, spouses often give statements in the heat of the moment that might not be accurate. The State can use this exception in certain instances even if that spouse doesn’t want to continue to press charges. The key here is that the State must prove a reliable foundation “including some acknowledgment that the statement was accurate when it was made.” Hurt v. State, 151 N.E.3d 809, 813 (Ind. Ct. App. 2020); Williams v. State, 698 N.E.2d 848, 850 n.4 (Ind. Ct. App. 1998).

If at trial the speaker cannot vouch for the accuracy of the earlier statements to police, it should not be admitted as evidence not vouch for the accuracy of her prior statements to the deputy within Exhibit 15 (Tr. Vol. III 97). The lack of on acknowledgement results in an abuse of discretion. See Ballard v. State, 877 N.E.2d 860, 863 (Ind. Ct. App. 2007) (The Court noted that the recorded recollection exception only applies if the declarant can “vouch for the accuracy of the prior statement.”).

Where to judges make mistakes? Judges will review the video and think the person can vouch for accuracy within the video. This is wrong. The person must vouch thereafter, usually at a trial.

When can the government use a present sense impression against me?

The present sense impression exception is unavailable when a witness is capable of conscious reflection when she made her out-of-court statements. This is similar to the excited utterance exception but broadens it. To be admissible as a present sense impression, the hearsay statement must describe or explain “an event, condition or transaction, made while or immediately after the declarant perceived it.” Ind. Evid. R. 803(1). The idea underlying the exception is that “the lack of time for deliberation [between the perceived event and the statement] provides reliability.” Mack v. State, 23 N.E.3d 742, 755 (Ind. Ct. App. 2014). Thus, “[t]he classic ‘present sense impression’ is the recounting of an event that is occurring before the declarant’s eyes, as the declarant is speaking (‘I am watching the Hindenburg explode!’).” Navarette v. California, 572 U.S. 393, 407 (2014). (Scalia, J., dissenting). The present sense impression exception is unavailable if the witness was no longer under the stress of the excitement when she gave her statement. In other words, the exception should apply when a person is describing an event to another person in real time. The listener could later testify to the hearsay at trial.

When can the government use an excited utterance against me?

Third, the excited utterance exception is inapplicable when a witness was capable of conscious reflection. A statement may be admitted as an excited utterance if the following three elements are established: (1) a startling event occurred; (2) the declarant made a statement while under the stress of excitement caused by the startling event; and (3) the statement relates to the startling event. Evid. R. 803(2); Fowler v. State, 829 N.E.2d 459, 463 (Ind. 2005) Marcum v. State, 772 N.E.2d 998, 1001 (Ind. Ct. App. 2002). “The heart of the inquiry is whether the declarant was incapable of thoughtful reflection.” Chambless v. State, 119 N.E.3d 182, 189 (Ind. Ct. App. 2019), trans. denied. The classic example “is a statement elicited, almost involuntarily, by the shock of what the declarant is immediately witnessing (‘My God, those people will be killed!’).” Navarette, 572 U.S. at 407–08 (Scalia, J., dissenting).

Can the government use my own statements against me at trial or are they hearsay?

            Although your statements technically fit the definition of hearsay when made out of court, they are transformed into non-hearsay under Rule 801(d)(2). This is a summary of the rule and some exceptions apply.

When is a witness unavailable for the purpose of a hearsay evaluation?

Rule 804(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies (like the right against self-incrimination);

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (5); or (B) the declarant’s attendance or testimony, in the case of a hearsay exception under rule 804(b)(2), (3), or (4).

This does not apply if the person who wants to put on the evidence wrongfully cause the declarant’s availability to prevent the speaker from testifying. In other words, the State can’t kidnap your alibi and then use that alibi’s prior statement against you.

If someone gives a deposition against me, can the State use it if that person doesn’t appear at trial.

Often times, yes. If the witness is unavailable, the State may admit testimony that was given by that witness at an earlier trial, hearing, or lawful deposition, whether given during the current proceeding or a different one. This evidence can only be offered against you if you had an opportunity to question the witness as well.

Notice that this exception is for former statements from trials, hearings, or depositions. All of these are statements where a person is put under oath.

Where can strong attorneys protect you from common errors:

The most common incorrect ruling on hearsay generally comes from older attorneys and judges who are not aware of a massive change in the hearsay rules. The law used to be that evidence was not hearsay if speaker was present at trial and could be cross-examined. This is under the defunct Patterson rule. See Modesitt v. State, 578 N.E.2d 649, 652-654 (Ind. 1991) (overruling Patterson). Time and again, our attorneys have to show courts and prosecutors that they are bound by precedent and must find another exception. This is a critical error that people call about when needing an appeal. By the time you have lost your trial, the damage is immense. Finding an attorney who can accurately navigate the hearsay rules is critical.

Contact My Office for a Free Consultation

You can contact Josiah Swinney for a free consultation by phone or email:

• Phone: 317-753-7134
• Email: Josiah@DefenseLawIndiana.com

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