Hearsay and circumstances of its admissibility - Definition ...

Learning Outcomes

This article explains the Federal Rules of Evidence (FRE) definition of hearsay and how to analyze it on MBE-style questions, including:

• Defining hearsay under FRE 801(c) and articulating each element in bar-exam ready language.
• Identifying the core components of a hearsay claim: an out-of-court statement, a human declarant, and a use for the truth of the matter asserted.
• Distinguishing “statements” from non-statements by separating oral and written assertions, assertive conduct, non-assertive conduct, and non-human outputs such as machines or animals.
• Recognizing when an out-of-court statement is offered for a nonhearsay purpose—verbal acts, effect on the listener or reader, or circumstantial evidence of state of mind—and concluding that the hearsay rule does not apply.
• Spotting multiple hearsay (hearsay within hearsay) in layered fact patterns and determining that each level must independently satisfy an exception or exclusion.
• Applying a disciplined, step-by-step hearsay analysis before turning to specific exceptions, so you can quickly eliminate wrong answer choices and select the response that best tracks the FRE framework.

MBE Syllabus

For the MBE, you are required to understand what constitutes hearsay and the circumstances under which an out-of-court statement might be admissible, with a focus on the following syllabus points:

• Define hearsay according to FRE 801(c).
• Identify the components: statement, declarant, and offered for the truth of the matter asserted.
• Distinguish between assertive and non-assertive conduct.
• Distinguish human “statements” from non-human outputs (e.g., machines, dogs).
• Recognize statements offered for non-hearsay purposes, such as:
  • Verbal acts (legally operative facts).
  • Effect on the listener or reader.
  • Circumstantial evidence of the declarant's state of mind.
• Recognize multiple hearsay and the need for an exception or exclusion at each level.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under the FRE, hearsay is defined as:
   1. Any statement made outside of court.
   2. An out-of-court statement offered to prove the truth of the matter asserted.
   3. An unreliable statement made by someone other than the witness testifying.
   4. A statement made in court about something someone else said out of court.
2. Which of the following is NOT considered a statement for hearsay purposes under the FRE?
   1. An oral assertion made outside of court.
   2. A written assertion in a document created outside of court.
   3. Nonverbal conduct intended by the person as an assertion.
   4. Nonverbal conduct not intended by the person as an assertion.
3. Plaintiff sues Defendant for damages after slipping on a wet floor in Defendant's store. To prove Defendant had notice of the wet floor before the fall, Plaintiff offers testimony from Witness that Witness heard another shopper tell Defendant's manager, "Watch out, the floor over there is wet," 15 minutes before Plaintiff fell. Is the shopper's statement hearsay?
   1. Yes, because it's offered to prove the floor was wet.
   2. Yes, because it was made by someone not currently testifying.
   3. No, because it is offered to show the effect on the listener (the manager), demonstrating notice.
   4. No, because it falls under the excited utterance exception.

Introduction

Hearsay is a fundamental concept in Evidence law, governed primarily by Federal Rule of Evidence (FRE) 801. The general rule, under FRE 802, is that hearsay is inadmissible unless an exception or exclusion applies. Understanding the definition of hearsay is the essential first step in any hearsay analysis. If a statement does not meet the definition of hearsay in the first place, then the general rule of inadmissibility does not apply, and no exception or exclusion is needed for it to be admitted (though other evidence rules might still bar it).

The statutory definition in FRE 801(c) can be paraphrased as follows: hearsay is a statement that (1) the declarant did not make while testifying at the current trial or hearing, and (2) is offered in evidence to prove the truth of the matter asserted in the statement.

The core definition involves three parts that you should test, in order, on every MBE question:

1. Is there a statement?
2. Was it made out of court (i.e., not while testifying at the current trial or hearing)?
3. Is it being offered to prove the truth of what it asserts, rather than for some other relevant purpose?

Only if the answer to all three questions is “yes” do you have hearsay. At that point you move on to ask whether the statement is classified as “not hearsay” by rule (FRE 801(d)) or falls within a hearsay exception.

Key Term: Hearsay
An out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement. [FRE 801(c)]

Key Term: Out-of-Court Statement
A statement that was made at any time or place other than while the declarant is testifying as a witness at the current trial or hearing, including statements made in earlier proceedings, depositions, interviews, or everyday conversation.

Key Term: Declarant
The person who made the out-of-court statement. [FRE 801(b)]

Analytical Framework for Hearsay

On the MBE, a disciplined, step-by-step approach avoids many traps:

• Step 1: Identify the item of evidence (usually testimony about something someone said or did).
• Step 2: Ask whether that item involves a statement as defined in FRE 801(a).
• Step 3: Determine whether the statement is out-of-court.
• Step 4: Determine the purpose for which the statement is being offered. Is the proponent relying on the truth of what the words assert?
• Step 5: If the statement meets the definition, consider whether:
  • It is treated as “not hearsay” by rule (e.g., certain prior statements of a testifying witness; admissions of a party opponent – covered in separate articles); or
  • It falls within a hearsay exception; and
  • In a criminal case, whether the Confrontation Clause creates additional limits.

Most exam errors occur at Step 4—misidentifying the purpose for which the evidence is being offered. The rest of this article focuses on getting that step right.

1. Out-of-Court Statement

This element is straightforward. The statement must have been made outside of the current trial or hearing. This includes:

• Statements made in prior trials, hearings, or depositions.
• Affidavits, letters, emails, text messages, social media posts, and other documents.
• Oral conversations anywhere other than a witness’s current testimony from the stand.
• Even the testifying witness’s own prior statements (e.g., “Last week I told the police that the light was red”) are out-of-court statements for hearsay purposes.

It does not matter where or when the statement was made; as long as it was not made as part of the witness’s current in-court testimony, it satisfies the “out-of-court” requirement.

Key Term: Statement
A person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. [FRE 801(a)]

Crucially, anything that is not a “statement” under this definition can never be hearsay, even if it happened outside of court.

2. Statement

FRE 801(a) defines a "statement" for hearsay purposes. It includes:

• Oral assertions: Spoken words intended to assert something (“The light was red.”).
• Written assertions: Written words intended to assert something (a letter saying, “I owe you $500”; a contract clause; a diary entry saying “I was in Boston on Tuesday.”).
• Nonverbal conduct intended as an assertion: Actions that the person performing them intended to substitute for words (e.g., nodding yes/no, pointing to identify someone, giving a thumbs up to signify “yes”).

Key Term: Statement
A person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. [FRE 801(a)]

Because intent is part of the definition, nonverbal conduct not intended as an assertion is not a statement and therefore cannot be hearsay.

Examples:

• Nodding when asked, “Was the light red?” – assertive nonverbal conduct, a statement.
• Pointing at a suspect in a lineup – assertive nonverbal conduct, a statement.
• Running out of a building that is on fire – non-assertive conduct showing fear or knowledge, but not intended as an assertion, so not a statement.
• Putting on a coat and grabbing an umbrella – could suggest that it is raining, but usually not intended as an assertion that “it is raining,” so not a statement.

Also, only humans make statements. A radar gun showing “82 mph,” an automatic computer printout, or a drug dog’s alert are not “statements” by a person. They may raise authentication or reliability issues, but they are not hearsay.

Key Term: Declarant
The person who made the out-of-court statement. [FRE 801(b)]

If there is no human declarant, there is no hearsay.

Assertive vs Non-Assertive Conduct

The MBE frequently tests whether particular conduct is a “statement.” The key question is: Did the person intend the conduct to communicate a particular factual assertion?

• If yes → assertive → potentially a statement.
• If no → non-assertive conduct → not a statement → not hearsay.

Worked Example 1.1

In a negligence case arising from a car accident at an intersection, Plaintiff offers testimony that immediately after the crash, Witness pointed at the traffic light facing Defendant and shook his head side-to-side. Plaintiff offers this to prove the light facing Defendant was red. Is Witness's conduct a statement for hearsay purposes?

Answer:
Yes. Witness's headshake was nonverbal conduct clearly intended to assert that the light was red (or at least, not green). Because it was intended as an assertion, it constitutes a "statement" under FRE 801(a). If offered to prove the light was red (its truth), it is hearsay.

Worked Example 1.2

In a shooting case, the prosecution offers testimony that, when the shots rang out, everyone in the café dropped to the floor. The prosecution offers this to show that loud noises like gunshots were heard inside the café. Is the patrons’ conduct a statement?

Answer:
No. The patrons’ dropping to the floor is non-assertive conduct; they were trying to protect themselves, not to communicate any factual message. Because they did not intend their actions as an assertion, there is no “statement” under FRE 801(a), and the evidence cannot be hearsay. It may be admissible as circumstantial evidence that loud, frightening noises were heard.

3. Offered for the Truth of the Matter Asserted

This is the most critical and frequently tested element. A statement is only hearsay if it is offered to prove that the content of the statement itself is true. If the statement is offered for any other relevant purpose, it is not hearsay.

Key Term: Nonhearsay Purpose
Using an out-of-court statement for a reason other than proving the truth of the content asserted within that statement (for example, to show that the statement was made, or its effect on someone). Such uses fall outside the definition of hearsay.

The same words can sometimes be used for multiple purposes. You must identify why the proponent is offering the statement in the specific question. Common non-hearsay purposes include:

• Verbal acts (legally operative facts).
• Effect on the listener or reader.
• Circumstantial evidence of the declarant’s state of mind.

Verbal Acts (Legally Operative Facts)

Some utterances are important because they were made, not because they are true. The words themselves have independent legal significance. In these situations, the making of the statement is the operative legal event.

Examples:

• Contract formation: “I offer,” “I accept,” “I agree to sell you my car for $5,000.”
• Gift: “I give you this painting.”
• Defamation: “He is a thief.”
• Bribery: “I will pay you $10,000 if you fix the case.”
• Perjury, solicitation, threats, extortion, and certain warnings.

When a witness testifies that such words were spoken, the statement is offered to show that the legal act (offer, acceptance, gift, defamatory publication, etc.) occurred. Whether the content is true (e.g., whether the person is actually a thief) is irrelevant for that purpose.

Key Term: Verbal Act (Legally Operative Fact)
Words that have independent legal significance simply by being spoken or written (such as words of contract, gift, defamation, or threat). They are offered to prove that the words were said, not that their content is true.

Because truth is not the point, verbal acts are not hearsay.

Effect on the Listener or Reader

Sometimes a statement matters because of its impact on the person who heard or read it. It may be relevant to show:

• Notice or knowledge (e.g., of a danger or defect).
• Motive.
• Reasonableness or unreasonableness of subsequent conduct.
• Duress, fear, or intimidation.

In these cases, the truth of what was said is irrelevant; what matters is that the listener received the information.

Key Term: Effect on the Listener or Reader
A nonhearsay use in which an out-of-court statement is offered to show its impact on the person who heard or read it (such as notice, knowledge, motive, or duress), regardless of whether the statement is true.

Example:

• “The bridge is out ahead!” is offered not to prove the bridge was actually out, but to show the driver heard a warning and was on notice of potential danger.

This is precisely the structure of Question 3 in the Test Your Knowledge section: the shopper’s statement is relevant to show that the manager had notice of a wet floor, regardless of whether the floor was actually wet.

Circumstantial Evidence of Declarant's State of Mind

Sometimes a statement is used as circumstantial evidence of what the declarant thought, knew, or felt, not to prove the truth of what was said.

Examples:

• “I am Napoleon Bonaparte” offered to show that the declarant may be insane, not that he is Napoleon.
• “I know the brakes on my car are bad” offered to show the declarant’s knowledge of a defect, regardless of whether the brakes actually are bad.
• “I am terrified of my husband” offered to show fear or the declarant’s state of mind in a self-defense claim.

Key Term: Circumstantial Evidence of State of Mind
A nonhearsay use in which a statement is offered as circumstantial evidence of what the declarant believed, knew, intended, or felt, irrespective of whether the content of the statement is true.

Statements admitting blame (“It was all my fault”) may be offered as circumstantial evidence of consciousness of guilt, not for the truth of the asserted facts.

Worked Example 1.3

Defendant is charged with robbery. The prosecution offers testimony that, shortly before the robbery, Defendant told his friend, "I need money fast." Is this statement hearsay if offered to prove Defendant had a motive to commit the robbery?

Answer:
No. The statement "I need money fast" is offered to show Defendant's state of mind (a feeling of financial desperation), which provides a motive for robbery. It is not offered to prove the literal truth that Defendant actually needed money fast (though that might also be true). It is circumstantial evidence of his state of mind, a non-hearsay purpose.

Worked Example 1.4

In a negligence action, Plaintiff claims that Defendant had notice that the store’s automatic door was malfunctioning. Plaintiff offers evidence that one week before the accident, a customer told the store manager, “That door almost crushed me; it slammed shut on its own.” The evidence is offered to show that the manager had notice of the door’s dangerous behavior. Hearsay?

Answer:
No. The statement is offered to prove its effect on the listener—that the manager was warned about a possible danger—not to prove that the door actually “almost crushed” the earlier customer. Because the truth of the assertion is not the point, it is not hearsay.

Mixed Purposes and Limited Admissibility

Sometimes a statement is relevant for both its truth and a non-hearsay purpose. For example, the shopper’s statement “The floor is wet” could (1) show notice to the store manager (non-hearsay) and (2) be used to prove that the floor really was wet (hearsay). Under FRE 105, the court may admit the statement for the proper non-hearsay purpose but instruct the jury that it may not use the statement to prove the truth of the matter asserted.

FRE 403 (probative value vs. unfair prejudice or confusion) still applies, but the key hearsay question is always: For what proposition is the evidence being offered?

4. Multiple Hearsay (Hearsay Within Hearsay)

Sometimes an item of evidence contains more than one level of out-of-court statement. This is called multiple hearsay or hearsay within hearsay.

Key Term: Multiple Hearsay
A situation where an out-of-court statement includes another out-of-court statement within it. Each level of hearsay must independently fall within a hearsay exception or exclusion to be admissible. [FRE 805]

Example:

• A witness reads a letter in court that says: “Dear Brother, yesterday I was talking to our mother and she told me that the red car was speeding.”

There are two hearsay levels:

• Outer layer: the brother’s letter (brother’s statement).
• Inner layer: the mother’s statement (“the red car was speeding”).

Each layer must be justified:

• The letter itself would need an exception or exclusion (e.g., business records, prior inconsistent statement, party admission, etc.).
• The mother’s statement also needs its own exception (e.g., excited utterance, present sense impression).

If either layer lacks an applicable exception or exclusion, the entire combined statement is inadmissible for its truth.

On the MBE, identifying multiple hearsay is often the key to eliminating tempting but incorrect answer choices.

Brief Note on Statements Classified as “Not Hearsay” by Rule

In addition to statements that fall outside the definition of hearsay because of their purpose, FRE 801(d) expressly treats certain kinds of out-of-court statements as “not hearsay” even though they are offered for their truth:

• Certain prior statements by a testifying witness (prior inconsistent statements under oath, prior consistent statements in limited circumstances, prior identifications).
• Admissions of a party opponent (the party’s own statements, adoptive admissions, and certain vicarious admissions).

These categories are heavily tested but go beyond the basic definitional issues. They are addressed in detail in separate articles; for this article it is enough to recognize that not everything that fits the 801(c) definition is governed by FRE 802, because the Rules themselves classify some such statements as non-hearsay.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is a statement that (1) was made out of court and (2) is offered to prove the truth of the matter asserted (FRE 801(c)).
• A "statement" includes oral assertions, written assertions, and nonverbal conduct intended as an assertion (FRE 801(a)).
• Non-assertive conduct and non-human outputs (e.g., radar readings, drug-dog alerts) are not statements and cannot be hearsay.
• The "declarant" is the human being who made the out-of-court statement (FRE 801(b)).
• A witness’s own prior out-of-court statements are “out-of-court statements” for hearsay purposes when offered through testimony.
• A statement is hearsay only if it is offered to prove the truth of what it asserts; if it is offered for another relevant purpose, it is non-hearsay.
• Common non-hearsay purposes include:
  • Verbal acts (legally operative facts) where the making of the statement itself has legal significance.
  • Effect on the listener or reader (notice, knowledge, motive, duress, reasonableness of conduct).
  • Circumstantial evidence of the declarant’s state of mind (belief, knowledge, intent, emotion).
• The same statement can be hearsay for one purpose and non-hearsay for another; courts may admit such evidence for a limited purpose with a limiting instruction.
• Multiple hearsay (hearsay within hearsay) requires an exception or exclusion for each level of hearsay.
• Certain categories—prior statements by a testifying witness and admissions of a party opponent—are treated as “not hearsay” by FRE 801(d), even when offered for their truth.

Key Terms and Concepts

• Hearsay
• Out-of-Court Statement
• Statement
• Declarant
• Nonhearsay Purpose
• Verbal Act (Legally Operative Fact)
• Effect on the Listener or Reader
• Circumstantial Evidence of State of Mind
• Multiple Hearsay