What Is Hearsay, and What Arizona Exceptions Exist

What Is Hearsay and What Exceptions Exist Under Arizona Law?

Please note that, while this article accurately describes applicable law on the subject covered at the time of its writing, the law continues to develop with the passage of time. Accordingly, before relying upon this article, care should be taken to verify that the law described herein has not changed.

I. The Definition of Hearsay

Hearsay is defined as “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.” FED. R. EVID. 801(c). The paramount reason for excluding these types of statements is due to their lack of trustworthiness. Glen Weissenberger, Hearsay Puzzles: An Essay on Federal Evidence Rule 803(3), 64 TEMP. L. REV. 145, 145 (1991). For example, admitting these statements into evidence does the disservice of not allowing the judge or jury to evaluate the witnesses’ credibility and trustworthiness regarding his or her recollection of the statement in question. GRAHAM C. LILLY, AN INTRODUCTION TO THE LAW OF EVIDENCE 157-58 (1978). Therefore, courts have developed three conditions that should exist for the admittance of a potential witnesses’ testimony: (1) under oath; (2) in the presence of the trier of fact; and (3) subject to cross-examination. Robert R. Rugani, Jr., Comment, The Gradual Decline of a Hearsay Exception: The Misapplication of Federal Rule of Evidence 803(4), the Medical Diagnosis Hearsay Exception, 39 SANTA CLARA L. REV. 867, 873-74 (1999).

II. The Definition of Non-Hearsay

While a statement made out of court, and presented for the truth of the matter asserted is considered hearsay, a statement that meets the following conditions is not considered hearsay:

(1) “The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony;

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(C) identifies a person as someone the declarant perceived earlier.” A. R. S. § Rules of Evid., Rule 801(d)(1). 

(2) Additionally, an opposing party’s statement is non-hearsay if the statement is “offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.” A. R. S. § Rules of Evid., Rule 801(d)(2).

III. Hearsay Exceptions under Arizona Law

Although the above rules and guidelines exist for testimony to be submitted in court, there are various exceptions to the hearsay rule that have been carved out. While each exception is different and very specific, what is common to each is a situation that encourages trustworthiness at the time the statement was made. Thus, the general hearsay exception rule is to not admit the statement as hearsay unless it is within the rigid guidelines of any of the exceptions to the rule. The hearsay exceptions are split into two categories, both regarding the declarant’s availability at the time of trial. 

Under A.R.S. § Rules of Evid., Rule 803, the following types of statements are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

(3) Then-Existing Mental, Emotional, or Physical Condition. This exception does not include a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

(4) Statement Made for Medical Diagnosis or Treatment. 

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. The record must have been made contemporaneously to the event, kept in the course of a regularly conducted activity of a business or organization, and making the record was a regular practice of that activity.

(7) Absence of a Record of a Regularly Conducted Activity. 

(8) Public Records. 

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. 

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. 

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

(14) Records of Documents That Affect an Interest in Property. 

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose — unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. 

(19) Reputation Concerning Personal or Family History. A reputation among a person’s family by blood, adoption, or marriage–or among a person’s associates or in the community–concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community–arising before the controversy–concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:

(A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;

(B) the conviction was for a crime punishable by death or by imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

(23) Judgments Involving Personal, Family, or General History or a Boundary. 

(24) [Other exceptions.] [Transferred to Rule 807.]

(25) Former testimony (non-criminal action or proceeding). Except in a criminal action or proceeding, testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

On the other hand, when a declarant is unavailable as a witness, other hearsay exceptions exist. Certain criteria are set in place in order to determine whether a declarant is unavailable under A.R.S. § Rules of Evid., Rule 804:

A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter;

(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (5); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subsection (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Under A.R.S. § Rules of Evid., Rule 804(b), the following statements are excluded by the rule against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony in a Criminal Case. 

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

(4) Statement of Personal or Family History. A statement about:

(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

(B) another person concerning any of these facts, as well as 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.

(5) [Formerly (7) Other exceptions.] [Transferred to Rule 807.]

(6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused–or acquiesced in wrongfully causing–the declarant’s unavailability as a witness, and did so intending that result.
If you would like to discuss a potential litigation case, we would be happy to discuss it with you. To arrange for a consultation concerning your legal matter, please contact Robert Mitchell at rdm@tblaw.com or at (602) 452-2730.
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