Hearsay is a statement that (1) the person making it (the declarant) does not make while testifying at the current trial or hearing (in other words, the statement is made out of court); and (2) a party offers as evidence to prove the truth of the matter asserted in the statement.
Hearsay is generally not admissible as evidence—but there are many exceptions to hearsay, and statements that are non-hearsay. The law governing hearsay is usually located in the applicable state or federal rules of evidence, which are interpreted and applied by courts in court opinions or cases.
In Texas, hearsay is addressed under the Texas Rules of Evidence, specifically Rule 801 and 802, which align with the general definition of hearsay as an out-of-court statement offered to prove the truth of the matter asserted. As a rule, hearsay is not admissible in court because the declarant is not present to be cross-examined, which raises concerns about the reliability of the statement. However, Texas law, similar to federal law, provides numerous exceptions to the hearsay rule. These exceptions are found in Rules 803 and 804 of the Texas Rules of Evidence and include situations where the declarant is unavailable or where the statement falls under a category that is deemed inherently trustworthy. Examples of exceptions include, but are not limited to, present sense impressions, excited utterances, statements of personal or family history, and records of regularly conducted activity. It is important for an attorney to carefully analyze whether a statement qualifies as hearsay and whether an exception applies when considering the admissibility of such evidence in a Texas court.
