When Can My Out of Court Statement be Used Against Me?

Most people have watched enough crime movies or television shows to know that hearsay is generally not allowed in court. There are times, however, when it is allowed in court, or when things you might think are hearsay can actually be used against you in court.

What is Hearsay?

Essentially, hearsay encompasses statements that a party to litigation makes outside of court, that a party to the litigation wants to use in court to prove a basis of their claim or defense. This kind of evidence is generally prohibited from being included because every accused person has a constitutional right to confront their accuser during trial. If someone said something would affect the outcome of your case, the law says you should have the right to cross-examine them so your rights and interests are protected.

What is Not Hearsay?

Not every out of court statement is hearsay, however. There are several categories of statements that can be included even if they were made out of court.

Prior Statements – These are statements made before trial by individuals who are available to testify at trial. Included in this category are prior inconsistent statements made under oath, prior consistent statements made at any point, and prior statements of identification of an accused person. Essentially, these statements are allowed to prove or rebut arguments that a testifying witness has changed their story.

Opposing Party’s Statement – This is a very broad category allowing any statement made by a party to current litigation to be entered into the record, whether or not it was made under oath, and whether the person is the plaintiff or the defendant. This category is so broad that it even allows for “vicarious statements,” which are statements made by one person that are imputed to another, such as those made by an employee which are imputed to an employer.

When Can Hearsay be Admitted?

Even if a statement qualifies as hearsay, there are some times when the court allows it to be admitted as evidence. Some of the more common examples of when hearsay can be admitted are:

  • The person who made a statement out of court (“the declarant”) is not available to testify about that statement in court
  • The declarant made the statement while they were dying
  • The declarant was expressing their impression about an event or incident while it happened
  • The declarant made the statement while under the stress or excitement about the incident at issue
  • The declarant made the statement while seeking medical treatment
  • The declarant made the statement about a matter they once knew about, when it was fresh in their memory, and they currently cannot recall that information
  • The declarant made the statement to express their motive, intent, or plan, or to express their emotional or physical condition

What Should You Do if You Are Charged With a Crime?

If you are charged with a crime, there are many surprising ways that the government can admit prejudicial evidence against you. You need a good attorney by your side to help you push back against these attempts and defend you. It can mean the difference between jail and freedom. Contact the Blischak Law Firm today to learn about your options.