Hearsay

When inquiring about a case, many clients ask their criminal defense attorney about “hearsay” evidence. Many clients typically believe that hearsay can never be used against them in a criminal case.  This is a common misconception among the general public.  Hearsay is a complicated legal concept that requires a complex legal analysis by an experienced criminal defense attorney.

Under The Illinois Rules of Evidence, hearsay is defined as:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ill. R. Evid. 801(c)

The legal definition itself is complex in its wording. Essentially in layman’s terms, hearsay can be defined as a statement made by someone not testifying in court that to be used as evidence to show that a defendant committed a crime (the truth of the matter asserted).

While hearsay, as defined, is not allowed at trial, the hearsay rule is also riddled with multiple statutory and common law exceptions that allow hearsay evidence to be admitted under certain circumstances.

Hearsay is allowed at bond hearings and preliminary hearings. The rules of evidence, specifically the hearsay rule, only govern the use of hearsay evidence at a trial on the merits (Bench/Jury).  The rules do not restrict the use of hearsay at bond hearings and preliminary hearings as these types of hearings aren’t classified as trials under the rules of evidence

Additionally, as previously mentioned above, the hearsay rule is riddled with multiple statutory and common law exceptions. Examples of Common law exceptions include but are not limited to:

Hearsay Evidence of Intent, Motive, Design, or Plan

Admissions of Party Opponent;

Statements Against Interest

Forfeiture by Wrongdoing

Present Sense Impression

Excited Utterance

Dying Declaration

Recorded Recollection

Business Records Exception

Former Testimony

Essentially, when an issue of hearsay arises during the course of a trial, the party seeking to admit the hearsay evidence into trial will attempt to characterize the statement as admissible under one of the various exceptions. The basic argument is that the hearsay evidence isn’t being admitted to prove the truth of the matter asserted, but for some other purpose.  An example would be a statement that establishes the defendant’s motive for committing the crime and not that he actually committed the crime.  The Judge will determine the admissibility of the specific hearsay evidence during the trial.

Additionally, Illinois law has a Statutory exception under that allows for out of court statements in cases involving a physical or sexual act perpetrated against a child who is under the age of 13 or is intellectually disabled. This allows “outcry” witnesses to testify in court to an out of court statement the child made to them.

Illinois law also has another Statutory exception under 725 ILCS 5/115-10.2(a) which is known as the “Domestic Violence Exception.” This exception allows out of court statements relating to prosecutions of domestic violence to be admitted into evidence against a defendant charged with Domestic Battery or a related offense.   The statutory exception also allows hearsay to be admitted into evidence in a prosecution for murder if there was a domestic relationship between the defendant and victim.

Another statutory exception that has recently been passed by Illinois under 725 ILCS 5/115-10.6. This law is also known as “Drew’s law” which was created in response to the Drew Peterson case in 2012 when he was charged with murder of his third wife, Kathleen Savio.  This new statutory exception allows admission of hearsay statements from “unavailable witnesses” in murder cases.  The State must prove in an evidentiary hearing prior to trial that the witness was killed to prevent his or her testimony and that the out of court hearsay statements are reliable.

Hearsay is a very complex legal concept that requires a very thorough and intensive analysis by an experienced criminal defense attorney. Hearsay isn’t as simple as that it is never admissible against someone in a criminal case.  Hearsay has multiple nuances and exceptions that have to be analyzed carefully.  Because failing to correctly identify issues of admissibility or inadmissibility of hearsay can negatively impact the outcome of a client’s case.

Ratings and Reviews

The National Trial Lawyers
10.0Raymond George Wigell
Raymond George WigellReviewsout of 38 reviews