Hearsay and circumstances of its admissibility - Definition of hearsay

Learning Outcomes

This article examines the fundamental definition of hearsay under the Federal Rules of Evidence (FRE). It distinguishes between statements offered for their truth versus those offered for other purposes (non-hearsay uses). After completing this article, you will be able to define hearsay, identify its core components (statement, declarant, offered for the truth of the matter asserted), and recognize common scenarios where out-of-court statements are admissible because they are not offered for their truth, enabling accurate analysis of hearsay issues on the MBE.

MBE Syllabus

For the MBE, a core requirement in Evidence is understanding what constitutes hearsay and the circumstances under which an out-of-court statement might be admissible. This involves analysing the purpose for which the statement is offered. You should be prepared to:

  • 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.
  • 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.

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 core definition under FRE 801(c) involves three parts: (1) an out-of-court (2) statement (3) offered to prove the truth of the matter asserted in the statement. Each component must be satisfied for the statement to constitute hearsay.

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)]

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 previous court proceedings, depositions, affidavits, documents, or simply spoken utterances made anywhere other than the current courtroom setting while testifying. Even a witness's own prior statement made outside the current testimony qualifies as "out-of-court."

2. Statement

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

  • Oral Assertions: Spoken words intended to assert something.
  • Written Assertions: Written words intended to assert something.
  • 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).

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

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

Crucially, nonverbal conduct not intended as an assertion is not a statement under the FRE and thus cannot be 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.

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. Identifying the purpose for which the evidence is offered is key.

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. Such uses fall outside the definition of hearsay.

Common non-hearsay purposes include:

  • Verbal Acts (Legally Operative Facts): Statements where the words themselves have legal significance, regardless of their truth. The making of the statement is the relevant fact.

    • Examples: Words forming a contract ("I accept your offer"), defamatory words ("He is a thief"), words constituting a gift ("I give this to you"). Offering testimony that these words were spoken proves the legal act occurred, not that the content of the words was necessarily true.

  • Effect on the Listener or Reader: Statements offered to show the effect they had on the person who heard or read them (e.g., to prove notice, motive, duress, or reasonableness of conduct). The truth of the statement is irrelevant; what matters is that the statement was made and heard/read.

    • Example: In a negligence case, a warning statement ("The bridge is out!") offered not to prove the bridge was actually out, but to show that the defendant heard the warning and was thus on notice of a potential danger.

  • Circumstantial Evidence of Declarant's State of Mind: Statements offered not for their truth, but as circumstantial evidence inferring the declarant's state of mind (e.g., knowledge, belief, sanity, emotion).

    • Example: A statement "I am Napoleon Bonaparte" offered not to prove the declarant is Napoleon, but as evidence of the declarant's potential insanity. A statement "I know the brakes on my car are bad" offered not to prove the brakes are bad, but to show the declarant's knowledge of a potential defect.

Worked Example 1.2

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.

Key Point Checklist

This article has covered the following key knowledge points:

  • Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (FRE 801(c)).
  • It is generally inadmissible unless an exception or exclusion applies (FRE 802).
  • A "statement" includes oral assertions, written assertions, and nonverbal conduct intended as an assertion (FRE 801(a)). Non-assertive conduct is not a statement.
  • The "declarant" is the person who made the out-of-court statement (FRE 801(b)).
  • Statements offered for purposes other than proving their truth (non-hearsay purposes) are not hearsay.
  • Common non-hearsay purposes include verbal acts (legally operative facts), effect on the listener/reader, and circumstantial evidence of the declarant's state of mind.
  • Determining the purpose for which an out-of-court statement is offered is essential for hearsay analysis.

Key Terms and Concepts

  • Hearsay
  • Statement
  • Declarant
  • Nonhearsay Purpose
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