Hearsay and circumstances of its admissibility - What is hearsay

Learning Outcomes

This article defines hearsay as presented in the Federal Rules of Evidence (FRE). It explains the foundational elements required for a statement to be classified as hearsay, distinguishing between assertive and non-assertive conduct, and identifying common non-hearsay uses of out-of-court statements. On completing this article, you will be able to identify hearsay statements and differentiate them from non-hearsay uses, which is a critical first step in applying hearsay exceptions and exclusions on the MBE. You will understand the basic definition of hearsay and its components.

MBE Syllabus

For the MBE, you are required to understand the definition of hearsay and the circumstances of its admissibility. This article focuses specifically on defining what constitutes hearsay under the Federal Rules of Evidence. Key areas include:

• Defining hearsay (FRE 801(c)).
• Understanding the component parts: "statement," "declarant," "out-of-court," and "offered for the truth of the matter asserted."
• Distinguishing assertive conduct (which is a statement) from non-assertive conduct (which is not).
• Recognizing out-of-court statements that are not offered for the truth of the matter asserted and are therefore not hearsay (e.g., verbal acts, effect on listener, circumstantial evidence of 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. Which of the following best defines hearsay under the Federal Rules of Evidence?
   1. Any statement made by a witness while testifying at the current trial.
   2. An out-of-court statement offered in evidence to prove the truth of the matter asserted.
   3. Any written document offered as evidence, regardless of its purpose.
   4. Conduct intended by a person as an assertion, offered to prove the truth of the assertion.
2. Under FRE 801(a), which of the following qualifies as a "statement" for hearsay purposes?
   1. The barking of a drug-sniffing dog.
   2. A person pointing to identify a suspect in a lineup.
   3. A person's involuntary groan of pain.
   4. A printout from a radar gun showing a car's speed.
3. In a negligence case, Plaintiff offers testimony that Defendant's employee said, "The floor was just waxed and is very slippery." If offered to prove that the floor was slippery, the statement is:
   1. Not hearsay because it is an admission by a party-opponent's employee.
   2. Hearsay, offered for the truth of the matter asserted.
   3. Not hearsay because it describes a present sense impression.
   4. Hearsay, but admissible as an excited utterance.
4. Plaintiff sues Defendant for defamation, alleging Defendant called Plaintiff a "thief." Plaintiff seeks to introduce testimony from Witness that Witness heard Defendant say, "Plaintiff is a thief." Defendant objects on hearsay grounds. The testimony is:
   1. Hearsay, because it's an out-of-court statement offered for its truth.
   2. Hearsay, but admissible under the state of mind exception.
   3. Not hearsay, because it is offered to show the statement was made (verbal act), not that Plaintiff is actually a thief.
   4. Not hearsay, because Defendant is a party-opponent.

Introduction

The rule against hearsay is a fundamental concept in Evidence law, frequently tested on the MBE. Hearsay is generally inadmissible unless it falls under a recognized exception or exclusion (FRE 802). Understanding the definition of hearsay is the essential first step before analyzing exceptions or exclusions. Hearsay is defined by the Federal Rules of Evidence as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted. FRE 801(c). This definition contains several key components that must be present for a statement to constitute hearsay.

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

Components of Hearsay

To determine if evidence constitutes hearsay, you must analyze three core components: (1) Is there a "statement"? (2) Was the statement made "out-of-court"? (3) Is the statement being "offered for the truth of the matter asserted"? If the answer to all three questions is yes, the evidence is hearsay.

1. Statement

For hearsay purposes, a "statement" is (a) an oral or written assertion, or (b) nonverbal conduct intended by the person as an assertion. FRE 801(a).

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

• Oral or Written Assertions: This includes spoken words and things written down (letters, documents, emails, etc.). The content asserts some fact.
• Assertive Conduct: Nonverbal conduct can be a statement if the person intended the conduct to substitute for words or communicate a fact. For example, pointing to identify a suspect in a lineup or nodding yes/no in response to a question is assertive conduct and constitutes a statement.
• Non-Assertive Conduct: Conduct not intended as an assertion is not a statement under the FRE and therefore cannot be hearsay. This reverses the common law approach. For example, evidence that ship passengers checked their baggage before boarding is offered to prove they believed the ship was safe. Their conduct was not intended as an assertion about the ship's safety, so it's not a statement.
• Questions and Commands: Generally, questions and commands are not assertions and thus not statements. However, a question or command might implicitly assert a fact (e.g., "Why did you run the red light?" implies the light was red).
• Machine or Animal Output: Statements must be made by a "person" (the declarant). Information generated purely by a machine (like a clock time or radar speed) or an animal (like a drug dog's alert) is not a statement by a person and therefore not hearsay.

2. Out-of-Court

The statement must have been made outside of the current trial or hearing. This includes statements made in previous court proceedings (like depositions or prior trials), statements made to police, or any other statement not made by the declarant while testifying in the current proceeding. Even a witness's own prior statement made outside the current testimony qualifies as out-of-court.

3. Offered for the Truth of the Matter Asserted (TOMA)

This is the most critical element and often the trickiest. The statement must be offered to prove that the content of the statement itself is true. If the statement is offered for any other purpose, it is not hearsay. Ask yourself: Does the value of this statement depend on believing that what the declarant said was accurate? If yes, it is offered for TOMA. If the value comes merely from the fact that the statement was made, regardless of its accuracy, it is not offered for TOMA.

Worked Example 1.1

Plaintiff sues Defendant for injuries sustained in a car accident. Plaintiff calls Witness, who testifies, "Immediately after the crash, Bystander ran over and yelled, 'The blue car ran the red light!'" Plaintiff offers this testimony to prove that Defendant (driving the blue car) ran the red light. Is Bystander's statement hearsay?

Answer: Yes. Bystander's comment is (1) a statement (an oral assertion), (2) made out-of-court (not during the current trial), and (3) offered to prove the truth of the matter asserted (that the blue car did, in fact, run the red light). Its value depends on the accuracy of Bystander's assertion.

Statements Not Offered for the Truth of the Matter Asserted (Non-Hearsay Uses)

If an out-of-court statement is offered for a purpose other than proving the truth of its content, it is not hearsay. Common non-hearsay uses include:

1. Verbal Acts (Legally Operative Words)

Sometimes, the words themselves have legal significance, regardless of their truth. The law attaches rights and liabilities simply because the words were spoken or written.

Key Term: Verbal Act A statement offered to show its legal effect, such as words of contract, defamation, or gift, where the utterance itself has legal significance.

Examples include:

• Words forming a contract (e.g., "I accept your offer"). Offered simply to show the contract was formed.
• Defamatory words (e.g., "He is a thief"). Offered to show the statement was made, which is an element of defamation, not to prove the person is a thief.
• Words of gift, bribe, cancellation, permission, etc.

2. Effect on Listener or Reader

A statement can be offered to show the effect it had on the person who heard or read it, such as providing notice, motive, or influencing their state of mind (e.g., creating fear). Its value does not depend on the truth of the statement, only that it was heard/read and had an effect.

Key Term: Effect on Listener or Reader An out-of-court statement offered to show the impact it had on the person who heard or read it, rather than to prove the truth of the statement's content.

Examples include:

• To show notice: Testimony that someone shouted "Watch out, the floor is wet!" offered to prove Defendant was put on notice of the danger, not that the floor was wet.
• To show motive: Testimony that Defendant was told "Your partner is cheating you" offered to show why Defendant acted angrily towards the partner, not that the partner was cheating.
• To show reasonableness of conduct: Evidence that Plaintiff was told "There's a rabid dog loose" offered to explain why Plaintiff acted fearfully or took precautions.

3. Circumstantial Evidence of Declarant's State of Mind

A statement can indirectly indicate the declarant's state of mind (e.g., knowledge, belief, sanity, emotion) without being offered to prove the truth of the facts asserted in the statement.

Key Term: Circumstantial Evidence of Declarant's State of Mind An out-of-court statement offered not for its truth, but as indirect proof of the declarant's mental or emotional state at the time the statement was made.

Examples include:

• To show insanity: Declarant states, "I am Napoleon Bonaparte." Offered to show irrational belief, not that the declarant is Napoleon.
• To show knowledge: Declarant states, "My brakes are faulty." Offered to show declarant's knowledge of the brake condition, not that the brakes were faulty.

Worked Example 1.2

In a murder trial, the prosecution offers evidence that the victim, shortly before her death, told a friend, "I am afraid of my husband, the Defendant." The prosecution offers this to show that the victim would not have voluntarily met the Defendant on the night she was killed. Is the statement hearsay?

Answer: No. The statement "I am afraid of my husband" is offered not to prove that the husband was actually fearsome or had done anything to cause fear (its truth), but as circumstantial evidence of the victim's state of mind (her fear). Her state of mind (fear) makes it less likely she would voluntarily meet him, which is relevant to countering a defense claim that the meeting was consensual. It's not being used to prove the truth of why she was afraid, only the fact that she was afraid.

Hearsay Within Hearsay

Sometimes, an out-of-court statement contains another out-of-court statement (e.g., "Witness told me that Declarant said..."). This is called hearsay within hearsay, or multiple hearsay (FRE 805). For the entire statement to be admissible, each level of hearsay must independently fall within a hearsay exception or exclusion.

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 (FRE 802).
• A "statement" can be an oral assertion, written assertion, or assertive conduct (FRE 801(a)).
• Non-assertive conduct is not a statement under the FRE.
• Machine/animal output is not a statement by a person.
• "Out-of-court" means not made while testifying at the current trial/hearing.
• "Offered for the truth of the matter asserted" means the statement's value depends on its accuracy.
• Statements are NOT hearsay if offered as Verbal Acts, to show Effect on Listener/Reader, or as Circumstantial Evidence of Declarant's State of Mind.
• Hearsay within hearsay requires an exception/exclusion for each level.

Key Terms and Concepts

• Hearsay
• Statement
• Verbal Act
• Effect on Listener or Reader
• Circumstantial Evidence of Declarant's State of Mind