Updated October 2026 | The Bulldog Law | California Criminal Defense

Hearsay is a statement made outside the courtroom, offered in court to prove that what it says is true. Evidence Code 1200 makes it inadmissible unless an exception applies, because the person who made the statement is not under oath, not in front of the jury, and not subject to cross-examination. The exceptions are numerous, more than two dozen in the Evidence Code, and a handful of them decide most criminal trials: the defendant's own admissions, spontaneous statements made under stress, dying declarations, statements against interest, prior inconsistent statements, business and official records, and the domestic violence and child abuse provisions that admit a non-testifying victim's words. In a criminal case the exceptions are limited by a second rule: under Crawford v. Washington, a testimonial statement, one made to police or for a prosecution, cannot be used against a defendant unless the person who made it testifies or was cross-examined before.

The Bulldog Law's attorneys fight more hearsay battles than any other kind of evidentiary dispute, because the prosecution's case is often built from statements by people who are not in the courtroom: the 911 caller, the victim who recanted, the co-defendant who took a deal, the lab technician who left the department, the informant. Whether those statements reach the jury is decided by the hearsay rule and its exceptions, by Crawford, and by a judge's ruling on an objection that has to be made at the right moment and on the right ground. What follows is what hearsay is, the exceptions that matter in criminal cases and what each requires, the Confrontation Clause limit, and where the fights actually happen. Call (888) 928-1609 or message our team.

The rule: Evidence Code 1200

Evidence Code 1200 defines hearsay as evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated, and declares it inadmissible except as provided by law. Three elements. A statement, which under Evidence Code 225 includes oral and written assertions and nonverbal conduct intended as a substitute for words, a nod, a pointed finger. Made outside the current testimony, so that a witness's own prior statements are hearsay too. And offered for its truth, which is the element that makes hearsay analysis an exercise in asking why the evidence is being offered.

A statement offered for a purpose other than its truth is not hearsay, and the non-hearsay purposes are where much of the real litigation occurs. A threat offered to show the victim's fear, not that the threat was true. A statement offered to show its effect on the listener, why an officer went to a location, why a witness fled. A statement offered to show the speaker's state of mind, knowledge, or intent. A verbal act, the words of a contract or a consent, that has legal significance regardless of truth. A prior statement offered to impeach, to show the witness said something different before. Prosecutors label damaging hearsay as effect on the listener or state of mind routinely, and the defense response is that the jury will use it for its truth whatever the label, which Evidence Code 352 addresses and a limiting instruction only partly cures.

Evidence Code 1201 addresses hearsay within hearsay, also called multiple or double hearsay: a statement that contains another statement is admissible only if each layer independently satisfies an exception. A police report is an official record of what the officer observed, but the witness statement quoted in it is a second layer that needs its own exception, and the report cannot carry it. Medical records are business records, but the patient's account of how the injury happened, quoted in the chart, is a separate statement that comes in only under the medical-diagnosis provisions or not at all.

The exceptions that decide criminal cases

Each exception has its own foundation, and the foundation is the objection. A spontaneous statement is contested on timing and on whether the declarant had calmed; a business record on whether the custodian can establish the method; a declaration against interest on whether the self-serving parts of a co-defendant's confession are severed from the self-inculpating parts, which the California Supreme Court requires; a prior inconsistent statement on whether it is actually inconsistent or merely a failure of memory, which Evidence Code 1235 treats differently. Our attorneys prepare the foundation fight for each exception the prosecution will invoke, because the judge rules on what is in the record when the objection is made.

The Confrontation Clause: Crawford

A hearsay exception is necessary but not sufficient in a criminal case. The Sixth Amendment guarantees the defendant the right to confront the witnesses against him, and since Crawford v. Washington in 2004, that right bars the prosecution from using a testimonial hearsay statement unless the declarant testifies at trial or is unavailable and the defendant had a prior opportunity to cross-examine. Testimonial means, under Crawford and the cases that followed, a statement made with the primary purpose of establishing or proving past events for later prosecution: statements to police during an investigation, formal statements, affidavits, and forensic reports prepared for trial. Non-testimonial statements, made with the primary purpose of addressing an ongoing emergency, such as a 911 call for help during an attack under Davis v. Washington, or made to friends, family, or in the course of business, are governed by the hearsay rules alone.

The consequence is a two-step analysis for every prosecution hearsay statement. Does an exception apply? If so, is the statement testimonial? A domestic violence victim's statement to the responding officer, after the emergency has ended, describing what happened, fits Evidence Code 1370 and is barred by Crawford if she does not testify. The same victim's 911 call during the attack fits Evidence Code 1240 and is admitted, because it was not testimonial. A lab analyst's report on the drug or the blood alcohol is testimonial under Melendez-Diaz v. Massachusetts, and the analyst must testify. A co-defendant's confession to police is testimonial and cannot be used against the defendant unless the co-defendant takes the stand, which is the Bruton problem in joint trials. The spousal privilege page explains how a spouse's invocation makes her unavailable for these purposes, and the witness-refuses page explains what the prosecution does when a witness will not appear.

Two further rules limit hearsay through experts and at the preliminary hearing. Under People v. Sanchez in 2016, an expert may not relate case-specific hearsay to the jury as true; the facts about this defendant and this case must be proven independently, which changed gang expert testimony and extends to any expert who was told the facts by someone else. And under Proposition 115, hearsay is admissible at the preliminary hearing through the testimony of a qualified officer, so that the prosecution can hold a defendant to answer on an officer's account of what witnesses said; our page on Proposition 115 and preliminary hearing hearsay covers that rule and its limits.

Where the fights happen

The 911 call in a domestic violence case. The most litigated hearsay question in California criminal courts. The victim does not appear; the prosecution offers the call under Evidence Code 1240 as a spontaneous statement and, where it describes injury, under 1370. The defense contests spontaneity, the time elapsed, the calm in the caller's voice, the responses to the dispatcher's questions, and testimonial purpose, whether the call was a request for help or a narrative for prosecution. The ruling decides whether a domestic violence case proceeds without a victim.

The defendant's own words. Admissions under Evidence Code 1220 have no reliability requirement; anything the defendant said that the prosecution wants to use comes in, subject only to Miranda and voluntariness. The hearsay rule does not protect a defendant from himself, and the defendant's exculpatory statements, offered by the defense, are hearsay without an exception, which is why a defendant generally cannot put his own denial before the jury without testifying.

The recanting witness. A witness who told police one thing and tells the jury another is impeached with the prior statement under Evidence Code 1235, and in California the prior statement comes in for its truth, so that the jury may convict on what the witness said to the officer rather than what she said on the stand. The defense contests whether the statement was made as the officer recorded it, and the bodycam has changed those disputes.

The co-defendant. A co-defendant's statement to police implicating the defendant is testimonial and inadmissible against the defendant unless the co-defendant testifies. A co-defendant's statement to a friend or a cellmate, implicating both, may come in as a declaration against interest, with the self-serving portions excised. The difference is the audience, and our attorneys examine every co-defendant statement for who heard it.

The records. Phone records, bank records, medical records, and the custodian declarations that authenticate them under Evidence Code 1271 and 1561. The defense contests the method, the timing, and the layers: the record may be a business record, but the statements inside it are not.

The documents the defense needs. The hearsay rule applies to the defense too, and the alibi witness's statement, the exculpatory text message from a third party, and the victim's prior inconsistent statement to a friend each need an exception or a non-hearsay purpose to reach the jury. Our attorneys build the defense case with the same foundation analysis, because the prosecution objects as well. Where the prosecution's case is largely hearsay that cannot survive Crawford, the case has the weakness that ends it, and the hearsay analysis, like the suppression analysis, is done before the preliminary hearing, when the prosecution's evidence is first exposed. The distinction between hearsay and circumstantial evidence, which people confuse, is that circumstantial evidence is admissible and inferential; hearsay is a category of evidence excluded for its form, regardless of what it proves.

Frequently asked questions

What is hearsay?

An out-of-court statement offered in court to prove that what it says is true. Under Evidence Code 1200, hearsay is inadmissible unless an exception applies. The rule exists because the person who made the statement is not on the stand, under oath, where the other side can cross-examine them. A witness who testifies that a neighbor told her the defendant was at the house is offering hearsay if the point is to prove the defendant was at the house. The same testimony is not hearsay if it is offered to show why the witness went to look.

What are the main exceptions to the hearsay rule?

California's Evidence Code lists more than two dozen. The ones that decide criminal cases: a party's own statements (admissions), spontaneous statements made under the stress of an event, dying declarations, declarations against interest, prior inconsistent statements of a testifying witness, business and official records, statements describing a threat or injury by an unavailable domestic violence victim, former testimony, and statements of a child victim of abuse. Each has its own requirements, and the proponent of the evidence must satisfy them.

Is hearsay admissible in a criminal case?

Not unless an exception applies, and in a criminal case there is a second hurdle: the Confrontation Clause. Under Crawford v. Washington, a testimonial hearsay statement, one made for the purpose of establishing facts for a prosecution, such as a statement to police during an investigation, cannot be used against a defendant unless the person who made it testifies or is unavailable and was previously cross-examined. A statement can fit a hearsay exception and still be barred by Crawford.

What is an excited utterance or spontaneous statement?

A statement made while the person was under the stress of excitement caused by an event they perceived, before they had time to reflect or fabricate. California's version is Evidence Code 1240. A 911 call made during or immediately after an assault is the classic example, and it is the most litigated exception in domestic violence cases, because it allows the prosecution to play the call when the victim does not testify. The defense contests whether the statement was truly spontaneous and whether it was testimonial under Crawford.

What is hearsay within hearsay?

A statement that contains another statement: a police report (hearsay) that quotes a witness (hearsay). Under Evidence Code 1201, each layer must independently fit an exception or the whole thing is excluded. The report might come in as an official record, but the witness's quoted statement inside it needs its own exception, and usually has none. Multiple hearsay is where prosecutors most often try to bring in evidence through a document that a live witness could not deliver.

Related reading from our attorneys

• Proposition 115 and hearsay at preliminary hearings
• What happens when a victim or witness refuses to testify
• Spousal privilege in California

The prosecution's case is built on what someone said somewhere else? That is a hearsay case, and hearsay cases are won on objections

The Bulldog Law's defense attorneys litigate hearsay and confrontation issues in domestic violence, homicide, gang, drug, and fraud cases across California, from the preliminary hearing through trial. Visit our criminal defense page, call (888) 928-1609, or reach us online.