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Kevin O'Flaherty

In this article, we explain exceptions to hearsay in Illinois. As you may already know from our other article, Hearsay Explained, hearsay is testimony that quotes people who are not present in court. Hearsay evidence is inadmissible for lack of a firsthand witness. However, there are several exceptions to hearsay. In this article, we’ll review the exceptions to hearsay and answer questions like, “What are the exceptions to hearsay?” and “When can hearsay evidence be admitted through another person’s testimony?” Hearsay exceptions do not mandate truthfulness; they only mean that the trier of fact (jury or judge) can be informed of the statement, therefore allowing the trier to consider it when deciding on the verdict of a case. Triers are also not required to believe or consider exceptions to hearsay statements. 

There are three different categories for all of the exceptions to hearsay; 1. The availability of declaration immaterial, 2. Declarant unavailable, and 3. residual exceptions to hearsay. 

Availability of Declarant Immaterial

Even if a person with first-hand knowledge is available to testify, second-hand evidence can be admitted under the following circumstances: 

·       Excited utterance

·      Statements against interest

·      Matter of record

·      Statements made to receive medical treatment

·      Present sense impression

·      Declarations of present state of mind

·       Prior inconsistent statements

Excited Utterance (Statement Under Stress)

Despite how it’s portrayed on television, this exception to hearsay may be admitted if the statement was made “res gestae,” meaning “in the immediacy of things.” Most relevant to criminal cases, this exception is based on the rationale that during or immediately following a criminal act, a person is less likely to have the presence of mind to lie or give false statements. If a person is simply angry or upset when the statement is made, that is not enough to count as an exception. In order for the statement to be a true impulsive utterance, it has to have been made in conjunction with an event so overwhelming as to discount the possibility of fabrication. It doesn’t have to be a criminal act, but that’s typically the circumstance. A statement made under stress is admissible as long as it is offered by a person who actually heard the words spoken.

Statements Against Interest (Admissions, Confessions)

Often referred to as admissions or confessions, statements against interest are statements or actions that somehow negatively affect the defendant. It doesn’t have to be a formal admission, like a statement given to the police. The rationale behind this hearsay exception is based on the fact that a person would not fabricate a statement that goes against his or her best interest. Believe it or not, many people make statements against their best interest in private settings, like when confiding to a friend or family member. For example, if a defendant admits to a crime, it can be included in a trial, even if it is hearsay. This is because it’s assumed that a person would not admit to being guilty if he or she wasn’t actually guilty. 

Matter of Record

This exception to hearsay applies to several different scenarios. Matter of record simply refers to the fact that any properly kept official government record is admissible in court. This includes income tax returns, employment information, private business records, court documents, birth certificates, contracts, etc. Because of this exception, the prior testimony of an unavailable witness can also be admissible. However, the judge can choose to deny it in the absence of a transcript. 

Statements Made to Receive Medical Treatment

People are known to tell the truth about their symptoms in order to obtain proper medical treatment. This is the rationale behind the exception to hearsay of statements made to receive medical treatment. 

Present Sense Impression

A statement expressing the declarant’s impression of a condition existing at the time the statement was made is referred to as a present sense impression. This includes statements like “It’s hot in here,” and “We’re going really fast.” This exception to hearsay is admissible, because the statement was likely only made if the defendant was truly experiencing those conditions in that moment. 

Declarations of Present State of Mind

This exception to hearsay is used in cases where the declarant’s mental state is at dispute. Much like how present sense impression describes the current conditions of the declarant’s environment, declarations of present state of mind describe the declarant’s mental state at the time. This includes existing mental, emotional, or physical conditions and sensations. For example, the statement “Becky told me she felt like she was going crazy lately,” may be admissible in court. Present state of mind statements can also be used as circumstantial evidence to prove an act committed by the declarant, like “I’m going to go to the grocery store.” 

Prior Inconsistent Statements

A prior inconsistent statement made by a witness, even if it wasn’t made under oath at a judicial proceeding or deposition, can be admissible as substantive evidence as long as the declarant signed the statement. 

Hearsay Exceptions: Declarant Unavailable

If a declarant is unavailable to testify, second-hand evidence can be admitted under the following circumstances: 

·       Dying declaration

·      Former testimony

·      Statement of personal or family history

·       Forfeiture by Wrongdoing

Dying Declarations (Statement Made Under the Belief of Impending Death)

If the declarant believes death to be imminent at the time the statement is made, it can be admissible to show the cause or circumstances of the death. Case law has ruled out this exception in criminal law, because the witness should always be cross-examined in court. 

Former Testimony

Testimony given as a witness at another hearing in the same or a different proceeding is admissible when the declarant is unavailable, provided the party against whom the testimony is now being offered had the opportunity to question or cross-examine the witness. 

Statement of Personal or Family History

A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, or similar fact of personal family history is admissible hearsay when the declarant is unable to testify. The statements can also be about another person concerning any of these facts, including death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate. 

Forfeiture by Wrongdoing

The party against whom the statement is now offered has intentionally made the declarant unavailable with the intent to prevent the declarant’s testimony by wrongdoing. 

Hearsay Exceptions: Residual

The Residual Exception Rule is the residual exception to the general prohibition against the admission of hearsay. This rule covers other statements not classified by the previous exceptions mentioned above. Residual exceptions to hearsay refer to statements that meet the following criteria: 

1.    The statement has equivalent circumstantial guarantees of trustworthiness

2.    The statement is offered as evidence of a material fact

3.    The statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts

4.    Admitting the statement will best service the purposes of these rules and the interests of justice

In order for a party to rely on the residual exception rule, the party must advise the opposing party far in advance of the trial or hearing about the statement with the name and address of the declarant. This gives the opposing party time to prepare a counter response to arguments in support of the proposed admission. Essentially, the residual exception rule is a “catch all” for other exceptions to hearsay that the laws could not reasonably cover and address, as there are so many kinds of hearsay evidence in legal situations that a party could argue for admission.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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