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 generally align with the Federal Rules of Evidence. Hearsay is defined as an out-of-court statement made by someone other than the witness testifying at trial, which is offered to prove the truth of the matter asserted in the statement. As a rule, hearsay is not admissible in court because it is considered unreliable due to the lack of opportunity to cross-examine the declarant. However, there are numerous exceptions to this rule. For instance, statements that are part of the present sense impression, excited utterances, statements of mental, emotional, or physical condition, recorded recollections, records of regularly conducted activity, and certain public records can be admissible despite being hearsay. Additionally, statements that are not offered for the truth of the matter asserted, but for another purpose such as to show the effect on the listener or the declarant's state of mind, are not considered hearsay. It is important for an attorney to carefully analyze whether a statement falls under the hearsay rule or one of its exceptions when preparing for trial in Texas.
