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  • Writer's pictureBrad Thornton

San Antonio Criminal Lawyer: What is Hearsay?

As a San Antonio criminal defense attorney, I have seen many cases in which the issue of hearsay arises. Hearsay is a term that is often thrown around in legal circles, but it can be quite complicated to understand. In this blog post, we will explore what hearsay is, why it is so complicated to understand, what is not hearsay, and what are the exceptions to the hearsay rule in Texas.


What is Hearsay?


Hearsay is an out-of-court statement made by a person who is not testifying in court and is being offered to prove the truth of the matter asserted by the statement. In other words, it is a statement made by someone who is not in court, and it is being offered in court to prove the truth of the statement that was made


Why is it so complicated to understand?


Hearsay can be complicated to understand because there are many exceptions to the hearsay rule. The hearsay rule is designed to prevent unreliable evidence from being admitted in court. However, there are many situations in which an out-of-court statement may be reliable and therefore should be admissible in court. For example, a dying declaration made by a person who is about to die may be considered reliable evidence and may be admissible in court.


Also, many lawyers and even judges struggle with the concept of hearsay. Many assume that just because a quote being offered in court is what someone said out of court, it is automatically hearsay. It is only hearsay if it is 1) a statement and 2) offered to prove the truth of the matter asserted in that statement. If what is being said out of a court is a question, such as: “Do you want to rob a bank?”, that would not be a statement, but rather a question. That means it's not hearsay.


If an attorney asks a witness, “why did you jump behind a car?” and the witness replies, “because he said he was going to shoot me”, the statement made about shooting the witness is not hearsay. In this instance, it is a statement rather than a question but it is not being presented to prove that he is going to shoot him. It's being presented to prove why the witness jumped behind the car.


What else is not hearsay?


There are many other statements that are not considered hearsay under the Texas Rules of Evidence. The most common example that arises in a criminal case is a statement made by a party opponent, which is not hearsay under the rule. This means that if a defendant makes a statement that is incriminating, that statement may be admissible in court even though it is an out-of-court statement. This only applies when offered by the prosecutor against the defendant, but not by the defendant in his own defense. Also, the victim in a criminal case is not considered a party opponent. So statement made by the victim is hearsay, even if it is against their own interest.


What are the exceptions to the hearsay rule?


There are many exceptions to the hearsay rule under the Texas Rules of Evidence. Some of the most common exceptions that arise in criminal cases include:


Present Sense Impression


The present sense impression exception allows certain out-of-court statements to be admitted in court as evidence when they describe or explain an event or condition and were made while the declarant was perceiving the event or condition or immediately thereafter.


In order to qualify as a present sense impression, the statement must meet the following criteria:


  1. The statement must describe or explain an event or condition;

  2. The statement must have been made while the declarant was perceiving the event or condition, or immediately thereafter; and

  3. The statement must have been made under the stress of excitement caused by the event or condition.


The rationale behind the present sense impression exception is that statements made in the immediate aftermath of an event are likely to be reliable because they are made before the declarant has had a chance to forget or fabricate details. The exception is based on the idea that a person who is describing something they are perceiving in the moment is less likely to lie or misremember what they have seen or experienced.


For example, if a witness sees a car accident and immediately calls 911 to report what they have seen, their statement to the dispatcher may be admissible under the present sense impression exception. Similarly, if a person witnesses a crime and calls the police to report it while the crime is in progress, their statement may be admissible as a present sense impression.


Excited Utterances


The excited utterance exception allows certain out-of-court statements to be admitted in court as evidence when they were made under the stress of excitement caused by a startling event, and the statement relates to the event or condition.


In order to qualify as an excited utterance, the statement must meet the following criteria:


  1. The statement must relate to a startling event or condition;

  2. The statement must have been made while the declarant was under the stress of excitement caused by the event or condition; and

  3. The statement must have been made before the declarant had time to reflect or fabricate.


Criminal Defense - Excited Utterance

The rationale behind the excited utterance exception is that statements made under the stress of excitement caused by a startling event are more likely to be spontaneous and reliable because the declarant is not likely to have had time to reflect or fabricate the statement. The exception is based on the idea that a person who is reacting to a startling event is less likely to lie or misremember what they have experienced.


For example, if a person witnesses a shooting and immediately says, "He shot him!" the statement may be admissible under the excited utterance exception. Similarly, if a person witnesses a car accident and exclaims, "Oh my God, he ran the red light!" the statement may be admissible as an excited utterance.


Then-Existing Mental, Emotional, or Physical Condition


The then-existing mental, emotional, or physical condition exception allows certain out-of-court statements to be admitted in court as evidence when they describe the declarant's mental, emotional, or physical state at the time the statement was made.


In order to qualify as a then-existing mental, emotional, or physical condition, the statement must meet the following criteria:


  1. The statement must describe the declarant's mental, emotional, or physical state;

  2. The statement must have been made at the time the declarant was experiencing the mental, emotional, or physical state described in the statement; and

  3. The statement must be relevant to the case at hand.


Criminal Defense - Then Existing Condition Exception

The rationale behind the then-existing mental, emotional, or physical condition exception is that statements made about a person's mental, emotional, or physical state at the time the statement was made are considered more reliable than statements made at a later time when the person's condition may have changed. The exception is based on the idea that a person is likely to be truthful about their own mental, emotional, or physical state.


For example, if a person tells their doctor about a recent migraine headache, their statement may be admissible under the then-existing mental, emotional, or physical condition exception. Similarly, if a person tells a police officer that they were feeling depressed and anxious at the time they committed a crime, their statement may be admissible as evidence of their mental state.


Statements Made for Medical Diagnosis or Treatment


The statements made for medical diagnosis or treatment exception allows certain out-of-court statements to be admitted in court as evidence when they were made for the purpose of receiving medical diagnosis or treatment.


In order to qualify as a statement made for medical diagnosis or treatment, the statement must meet the following criteria:


  1. The statement must be made to a medical professional;

  2. The statement must be made for the purpose of receiving medical diagnosis or treatment;

  3. The statement must be relevant to the medical diagnosis or treatment; and

  4. The statement must be made by the patient or someone acting on behalf of the patient.


Criminal Defense - Medical Diagnosis Exception

The rationale behind the statements made for medical diagnosis or treatment exception is that patients are likely to be truthful when providing information to their medical providers in order to receive appropriate diagnosis and treatment. The exception is based on the idea that patients will be more forthcoming with information when their medical needs are at stake.


For example, if a patient tells their doctor about their history of alcohol abuse in order to receive appropriate treatment, their statement may be admissible under the statements made for medical diagnosis or treatment exception. Similarly, if a patient tells their therapist about their history of childhood abuse in order to receive appropriate therapy, their statement may be admissible as evidence of their mental state.


It is important to note that just because a statement falls under one of these exceptions does not necessarily mean that it will be admissible in court. The statement must still be evaluated for reliability before it can be admitted.


Records of a Regularly Conducted Activity


The records of a regularly conducted activity exception, also known as the business record exception, allows certain out-of-court statements contained in business records to be admitted in court as evidence.


In order to qualify as a record of a regularly conducted activity, the record must meet the following criteria:


  1. The record must be made at or near the time of the event;

  2. The record must be made by or from information transmitted by a person with knowledge of the event;

  3. The record must be kept in the course of a regularly conducted business activity;

  4. The record must be made as a regular practice of that business activity; and

  5. The source of information or the method or circumstances of preparation must indicate its trustworthiness.


Criminal Defense - Business Record Exception

The rationale behind the records of a regularly conducted activity exception is that business records are created in the normal course of business and are kept for the purpose of conducting business. Therefore, they are considered to be reliable and trustworthy.


For example, if a hospital creates a medical record documenting a patient's treatment and care, the record may be admissible under the records of a regularly conducted activity exception. Similarly, if a bank creates a record of a customer's account transactions, the record may be admissible as evidence of the customer's financial activity.


San Antonio Criminal Lawyer


The rules of evidence in Texas can be complex and confusing, especially for individuals who are not familiar with the legal system. Understanding the various exceptions to the hearsay rule and other rules of evidence requires specialized knowledge and training, which is why it is crucial to hire an experienced criminal defense attorney when facing criminal charges.


A knowledgeable criminal defense attorney can help review the evidence against you and identify any issues with the admissibility or reliability of the evidence. They can also determine whether any exceptions to the hearsay rule or other rules of evidence apply to your case, which can have a significant impact on the outcome of your case.


San Antonio Criminal Defense Attorney

At my law firm, we have extensive experience representing clients in a wide range of criminal cases, from misdemeanors to serious felonies. As a Board-Certified Criminal Defense Attorney, I have the expertise and knowledge to navigate the complex rules of evidence and advocate for the best possible outcome for my clients.


If you are facing criminal charges in San Antonio or the surrounding areas, we offer free consultations to discuss your case and provide guidance on your legal options. We understand that facing criminal charges can be a stressful and overwhelming experience, which is why we are committed to providing our clients with compassionate and personalized legal representation.


Don't wait to get the legal help you need. Contact us today at 210-439-5627 to schedule your free consultation with a skilled San Antonio criminal defense attorney. We are here to help you fight for your rights and your freedom.

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CRIMINAL LAW BLOG

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WHY HIRE THORNTON CRIMINAL DEFENSE?

Attorney Brad Thornton is a highly experienced and Board-Certified criminal defense lawyer. With his background as a former Chief Prosecutor, he has a unique understanding of the criminal justice system and is able to provide comprehensive and effective representation to his clients. He is also deeply committed to ensuring that all individuals receive fair treatment in court, regardless of their background or circumstances.

Brad Thornton is dedicated to helping his clients achieve the best possible outcome for their case, whether it is in San Antonio or elsewhere in South Texas. He recognizes the stress and anxiety that can come with being accused of a crime, and approaches his clients with compassion while keeping them informed at every step of the process. His knowledge and experience make him a strong advocate for his clients.

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© 2023 by Thornton Criminal Defense, PLLC. 

Atascosa County Criminal Defense Attorney

San Antonio Office:

111 Soledad, Suite 401

San Antonio, Texas 78205

Tel: 210-439-5627

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Pleasanton, Texas 78064

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