What Is Hearsay, and Why Is It Excluded From Criminal Trials?

In a criminal trial, the prosecution presents evidence to the jury that it hopes will prove the defendant's guilt. The federal courts and all state courts have rules of evidence designed to ensure that juries only consider reliable information as part of their deliberations. One of these rules bars the use of hearsay—that is, a statement originally made outside of court, and used to convince the jury that the contents of the statement are true. This article provides a guide to the hearsay rule, including the many exceptions that allow out-of-court statements to be used as evidence in criminal trials.

What Is Hearsay Evidence?

A statement is hearsay if:

• it was originally made outside of court, and is then repeated by a witness during the trial, and
• the statement is only relevant to the trial if it's actually true.

Offering a statement "for its truth." In general, courts exclude hearsay evidence in trials, criminal or otherwise. But this doesn't mean witnesses can never repeat statements they originally heard (or read) outside of court. That's because, as the Federal Rules of Evidence explain, a statement is only hearsay if a party is using it "to prove the truth of the matter asserted in the statement." (Fed. R. Evid. 801(c)(2) (2025).) If an out-of-court statement is relevant regardless of whether or not it's true, then repeating it in court isn't hearsay.

Examples of hearsay and non-hearsay statements. Imagine that Denise is on trial for murdering Victoria. Walter overheard the two arguing shortly before Victoria's death, and is called as a witness for the prosecution. Walter states three things in his testimony that the defense argues are hearsay:

• "I walked by Victoria's office and heard Victoria and Denise yelling at each other." A court would rule that this is not hearsay, because Walter isn't repeating a statement he heard outside of court. Rather, he's testifying about his direct observation that Victoria and Denise were arguing.
• "Victoria said that she was going to report Denise to the police for stealing money from the company." Here, Walter is repeating a statement originally made outside of court. But it's not hearsay, because its relevance to the case against Denise isn't based on whether or not its true. Instead, it's relevant because of its effect on Denise—it's the kind of thing that might have given her a reason to kill Victoria.
• "My coworker Harold told me that Victor was investigating Denise for embezzlement." This is hearsay. Walter is repeating Harold's out-of-court statement, and that statement is only relevant if it's true that Victor was investigating Denise for embezzlement. If Harold was lying, or mistaken, then his statement has no bearing on Denise's case.

Both verbal and written statements can be hearsay. The hearsay rule often comes up when a witness is describing what they were told by another person. But the rule also applies to written statements. For example, the law would treat a statement the same way regardless of whether it was:

• something the witness heard in a conversation, and then repeated at the trial, or
• something the witness read in an email, and then repeated at the trial.

Why Is Hearsay Evidence Excluded?

There are two key reasons courts exclude hearsay evidence. The first is that its reliability is questionable. The second is that, in a criminal trial, it can violate a defendant's constitutional right to confront their accusers.

Courts Think Hearsay Is Unreliable

The goal of the hearsay rule is to make sure the evidence at trial is as reliable as possible. Criminal defendants face dire consequences. Courts don't want them convicted based on gossip, or on evidence that can't actually be confirmed first-hand by any of the witnesses. Allowing hearsay evidence also makes it difficult—if not impossible—for juries to assess the reliability and honesty of the person who made the original statement.

Hearsay Makes Cross-Examination Impossible

The hearsay ban aims to prevent juries from considering information that hasn't been subject to cross-examination. This is related to the concern about unreliable testimony. Cross-examination is when witnesses for one side of a court case are questioned by lawyers from the other side. This process allows the cross-examining attorney to raise questions about a witness' credibility, and about the honesty and accuracy of their testimony.

In criminal cases, the Confrontation Clause of the Sixth Amendment often operates in conjunction with the hearsay rule to prevent admission of out-of-court statements. The Confrontation Clause protects the right of criminal defendants to cross-examine witnesses against them. This means that, in many situations, a statement could be excluded because it's hearsay and because it would violate the defendant's constitutional rights.

Hearsay Exceptions in Criminal Cases

Despite the rules against hearsay, and the Sixth Amendment right to cross-examination, courts often allow witnesses to offer testimony that falls within the definition of hearsay. The rationale for these exceptions is that, because of the circumstances in which the statement was made, it's reasonable to assume that the statement is true. Hearsay exceptions include:

• Business or official records. Courts often allow statements from business and official (or public) records because the sources are reliable. An example is a computer log of all licensed gun holders in a county.
• Dying declarations. Statements by people who are about to die, and know they are about to die, are admissible. The theory is that the speaker can't be called as a witness, and people aren't likely to lie with their last breath.
• Excited utterances. These are statements made in response to a startling situation, made while the person is still dealing with the stress of that situation. For example, if Walter sees Victoria run out of her office yelling, "Denise has a gun," Walter could probably repeat that excited utterance in court. On the other hand, he wouldn't be allowed to say that he had lunch with Victoria and she told him that, two weeks before, Denise brandished a gun at her.

(Fed. R. Evid. 803) (2025).)

In addition to these exceptions (which allow statements that fit the definition of hearsay), there are also hearsay "exclusions." These are specific types of statements that, according to the rules of evidence, are not hearsay at all. In federal court, the two exclusions are:

• Statements made by a party in a case, and later used against that party in court. For example, a prosecution witness can testify "Denise told me she killed Victoria," and it's not hearsay because it's Denise's own statement being used against her. The rationale here is that people are unlikely to lie in ways that harm their own reputations or expose them to criminal prosecution.
• Statements used to attack or support a witness' credibility. If a witness says something on the stand that contradicts a previous statement they've made under oath, that prior statement can be introduced to call their honesty or reliability into question. On the flip side, if a witness is accused of making something up, a prior consistent statement can be used to bolster their credibility.

(Fed. R. Evid. 801(d) (2025).)

Learn More About Evidence in Criminal Cases

As we've seen, deciding whether a statement is hearsay—and, if so, if it can still be admitted under an exception—can be complicated. If you need help understanding how these rules (or other rules for criminal cases) apply to your own situation, consider consulting with a criminal defense attorney.