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Hearsay Exceptions

Tutorial on the crimes of stalking and harassment for New Mexico judges

The Rules of Evidence provide a list of exceptions to hearsay statements. See, e.g., Rules 11-803 (hearsay exceptions; availability of declarant immaterial); 11-804 (hearsay exceptions; declarant unavailable); 11-807 (residual exceptions to hearsay). The general basis for those exceptions is that the conditions under which the statements were made or, for documentary evidence, the reasons the documents were produced, indicate a degree of trustworthiness in the contents of the out of court statement or document.

Whether the hearsay statement fits within any of the recognized exceptions depends on the facts and circumstances under which the statement was made. In stalking and harassment cases and regarding witness testimony, the potentially argued exceptions to the prohibition against hearsay include:

  • Present Sense Impression, Rule 11-803(A): defined as "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

    Prosecution example: a police officer testifying to what the victim told him or her upon arrival immediately after the occurrence of a stalking incident. "She told me that about five minutes before I arrived she was extremely frightened when catching the defendant again peering into her bedroom window late at night."

    Defense response: given the requirement of immediacy in the present sense impression exception, the passage of time shows the statement was not made to the officer immediately after the incident and therefore lacks the trustworthy factor of immediacy.

  • Excited Utterance, Rule 11-803(B): defined as "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."

    Defense example: to counter the victim's claim that the defendant's repetitious telephone calls to her were harassment and caused her substantial emotional distress, the defendant's friend testifies "He (defendant) hung up the phone and told me that the call really freaked him out because it was from Norma (the alleged victim) and she was flirting with him and finally agreed to meet him for a drink after he had been asking her out for months!"

  • Then Existing Mental, Emotional or Physical Condition, Rule 11-803(C): defined as "a statement of the declarant's then existing state of mind, emotion, sensation or physical condition…."

    Prosecution example: a neighbor of the victim testifies "Diane (the alleged victim) told me she felt like she was going crazy and could barely eat a thing after her ex-boyfriend followed her to work, school and home for three weeks solid!"