Out-of-Court Statements: The Concentric Hoops of the Hearsay Rule and the Confrontation Clause

43 Pages Posted: 15 Jul 2010 Last revised: 14 Sep 2010

See all articles by Lynn McLain

Lynn McLain

University of Baltimore - School of Law

Date Written: September 1, 2009


This paper was prepared as a handout for a presentation at the Maryland Judicial Institute in September of 2009.

To determine whether evidence of an out-of-court statement is admissible, one must make several determinations. If the evidence passes muster under the rules of evidence, then one must ask if its admission would violate the Constitution: (1) Is the proffered evidence “hearsay” (as defined in Md. Rule 5-801(a)-(c))? If the evidence is nonhearsay, neither the hearsay rule nor the Confrontation Clause will exclude it. (2) If it is hearsay, is it nonetheless not excluded by the hearsay rule, because it qualifies under an exception to that rule (Md. Rule 5-803-804)? (3) Even if the hearsay rule does not exclude it, do other evidence rules exclude it (e.g., Md. Rule 5-403)? If rules of evidence do not exclude it, then one must ask whether the Constitution bars its consideration.

(4) If it is offered at a trial on the merits1 against a criminal accused, is it testimonial hearsay? If it is testimonial, then its admission must comply with the confrontation clause. (5) Even if the confrontation clause is inapplicable, but the evidence is offered in any proceeding to which the due process clause applies, is the evidence reliable? See, e.g., Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) (a verdict based on unreliable evidence violates the losing party's due process right).

Rule 5-801(c) defines OCS as “a statement, other than one made by the declarant while testifying at the trial or hearing. . . .” Rule 5-801(a) defines a "statement" as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” It can be fairly said, then, that a "statement" is an assertion of fact(s) by a person.

Because of the first part of the definition in Rule 5-801(c), for purposes of the rules of evidence even the prior statement of a witness who is testifying today at trial is considered an OCS. Thus the hearsay rule excludes a witness's own prior statements unless either (1) they are offered only for a relevant nonhearsay purpose or (2) the proper foundation has been laid to support a finding by the trial judge that they fall within a particular hearsay exception (or exceptions). This may be surprising, because, after all, this witness declarant can be cross-examined at trial. Thus, this preference for live memory is reflected only in a rule of evidence, and not in the confrontation clause.

Keywords: constitutional law, Confrontation Clause, out-of-court statements, hearsay rule, evidence, prior consent statements, child testimony, sexual assault, criminal law, civil procedure, hypotheticals

JEL Classification: K19, K29, K39, K49

Suggested Citation

McLain, Lynn, Out-of-Court Statements: The Concentric Hoops of the Hearsay Rule and the Confrontation Clause (September 1, 2009). Available at SSRN: https://ssrn.com/abstract=1636963 or http://dx.doi.org/10.2139/ssrn.1636963

Lynn McLain (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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