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Exceptions to the Hearsay Rule

Hearsay- Exceptions when the Declarant is Available to Testify

In our last post on hearsay we explained both how Military Rules of Evidence (MRE) 801 defines hearsay and how it excludes certain statements from the general rule—found in MRE 802—that hearsay is inadmissible in courts-martial proceedings. In our second post of a multi-part series on hearsay, we’ll explain some of the major exceptions in the Military Rules of Evidence that allow for the admission of hearsay statements as evidence in military courts.

The rule against hearsay is primarily concerned with reliability. The drafters of the evidentiary rules found that when a statement is made under certain conditions, the indicia of reliability is enough to admit the statement as evidence, despite the rule against hearsay.

MRE 803 lists the hearsay exceptions that apply regardless of whether the person that originally made the statement is available to testify or not.

The Exceptions Have Swallowed the Rule

The rule against hearsay is only a single sentence long. Quoted in its entirety, MRE 802 says: “Hearsay is not admissible unless any of the following provides otherwise: (a) a federal statute applicable in trial by courts-martial; or (b) these rules.”

In contrast, the rules listing the exception to the rule span several pages of the Manual for Courts-Martial. MRE 803 alone contains 23 enumerated subsections listing exceptions, with many of those subsections containing multiple exceptions.

Contemporaneous Statements

One category of exceptions in MRE 803 concerns contemporaneous statements—that is, statements that are made close in time to an event. The first is known by the term “present sense impression,” which is a statement describing an event or condition as it happens or soon after. A classic example of a present sense impression is the recording of a 911 call in which the caller describes an event as it is happening or immediately after it happened.

Similarly, an excited utterance that relates to a startling event or condition may be admissible. To qualify as an excited utterance, the person making the statement about the startling event must have made the statement while still under the “stress of excitement” that it caused.

Mental, Emotional, and Physical State

Statements of the “then-existing mental, emotional, or physical condition” of the person making the statement also fall under MRE 803. This exception applies to prior witness statements concerning mental states relevant to a motive, intent or a plan or to emotional, sensory, or physical conditions—such as anxiety, physical pain, or health conditions. Another exception allows for statements made for a medical diagnosis or treatment if certain conditions are met.

Business, Public, and other Records

Many exceptions relate to documentary and other records. One covers “recorded recollections.” Simply put, if a witness has forgotten something, certain witness statements that were made when the matter was still fresh in the witness’s memory can be introduced.

MRE 803 provides exceptions for a broad range of “records of a regularly conducted activity.” Conversely, an exception also allows the introduction of hearsay evidence to show the “absence of a record of a regularly conducted activity.”

Other exceptions include—but are not limited to—public records of vital statistics such as birth, death, or marriage records. MRE 803 also contains exceptions for religious organization records—such as baptismal or confirmation certificates or marriage certificates.

Property records and deeds, authenticated documents at least 20 years old, market reports, scholarly articles or periodicals, certified court records, judgments, and many other records may also be admitted as evidence if certain conditions exist.

Reputation Evidence

The final broad category of exceptions in MRE 803 consists of reputation evidence. Community reputation about boundaries in a community, local customs that affect the land, or historical events in the community may all be admitted as evidence under certain conditions despite their nature as hearsay.

Of great significance to people facing charges in a court-martial, a person’s reputation among a person’s associates or in the community about the person’s character may be admissible as evidence in a court-martial.

Don’t Assume the Hearsay Rule Will Keep Evidence Out of Court

We’ll cover both MRE 804 and MRE 807 in our next post. MRE 804 lists the exceptions to hearsay when the declarant is considered unavailable to testify. MRE 807 is the “residual exception” rule, which is the catch-all exception that allows for the admission of hearsay under certain conditions even when it doesn’t fit into a specific exception listed in the other rules.

The many exceptions to the hearsay rule underscore how important it is to hire an experienced trial attorney if your freedom is at stake. The attorneys at Patriots Law Group have the trial experience to consider the type of evidence in your case, the complicated rules governing its admissibility, and the best strategies to exclude or introduce that evidence.