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The Federal Rules of Evidence: Hearsay

The hearsay objection is one of the most common objections used in practice. Both the Federal Rules of Evidence and Nevada Revised Statutes contain similar guidelines regarding hearsay, which is defined as “an out-of-court statement offered in evidence to prove the truth of the matter asserted.” Nevada law defines a statement as either “1) an oral or written assertion; or 2) nonverbal conduct of a person intended as an assertion.” In the context of hearsay, the declarant—the individual who made the statement—did not make the statement under oath or while affirming the truth, making it difficult to assess the truthfulness of the statement or reliability of the declarant. Essentially, the reasoning behind hearsay objections is that courts prefer firsthand reports over secondhand reports. The risk of faulty perception, unreliable memory, lack of clarity, and untruthfulness increases with secondhand testimony. Secondhand reports also eliminate a factfinder’s ability to cross-examine the original speaker, preventing them from viewing the speaker’s demeanor and assessing the credibility of these reports.

While courts generally prefer firsthand reports over secondhand reports, there are situations in which secondhand reports are considered reliable. The Federal Rules of Evidence describe four categories in which hearsay may be admissible, which are fairly mirrored by the admissible hearsay exceptions under Nevada law.

Generally, in greater regard to the Federal Rules of Evidence, hearsay exceptions fall under one of the following categories: 1) Either prior statements by the witnesses or statements made by opposing parties; 2) situations in which the declarant is unavailable to testify in court; 3) exceptions in relation to excited utterances, present sense impressions, state of mind, medical treatment, recorded recollection, business records, public records, or other exceptions under Federal Rule 803; or 4) a residual hearsay exception under Federal Rule 807. The purpose of these categories of hearsay exceptions is to permit the admission of statements or documents that are highly reliable, despite being made out-of-court to prove the truth of the matter.

Thanks to the personal injury lawyers at Eglet Adams for their insight on hearsay as it pertains to the Federal Rules of Evidence.

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