Hearsay and circumstances of its admissibility - What is hea...

Learning Outcomes

This article explains hearsay doctrine under the Federal Rules of Evidence (FRE), including:

• the precise elements of hearsay under FRE 801(c) and how they interact with the general exclusionary rule in FRE 802;
• how to identify whether words, writing, or conduct qualify as a "statement," and to distinguish them from questions, commands, and non-assertive behavior;
• techniques for spotting when a statement is truly "out-of-court" even if the declarant later testifies in the present proceeding;
• how to determine whether evidence is being offered for the truth of the matter asserted (TOMA) or for a permissible non-hearsay purpose;
• the main categories of non-hearsay uses tested on the MBE, such as verbal acts, effect on the listener or reader, and circumstantial evidence of state of mind;
• why animal behavior and machine-generated information fall outside the hearsay definition and what alternative doctrines govern their admissibility;
• a step-by-step method for analyzing multiple hearsay, ensuring that each layer is supported by a hearsay exception, exclusion, or non-hearsay purpose;
• common MBE traps involving hearsay labels, such as confusing verbal acts with assertions or treating all prior statements as hearsay;
• practical exam strategies for organizing hearsay analyses quickly under time pressure, so you can move efficiently to any applicable exceptions or constitutional issues.

MBE Syllabus

For the MBE, you are required to understand the definition of hearsay and the circumstances of its admissibility, with a focus on the following syllabus points:

• Defining hearsay under FRE 801(c) and the basic rule of exclusion in FRE 802.
• Understanding the component parts: “statement,” “declarant,” “out-of-court,” and “offered to prove 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 TOMA and are therefore not hearsay (e.g., verbal acts, effect on listener, circumstantial evidence of state of mind).
• Being aware that certain categories (prior witness statements and opposing-party statements) are defined by the FRE as “not hearsay” even when offered for their truth (FRE 801(d)).

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 central to Evidence law and heavily tested on the MBE. Under FRE 802, hearsay is generally inadmissible unless it falls within an exclusion or exception. You cannot, however, apply any exception until you know whether you are dealing with hearsay in the first place.

FRE 801(c) defines hearsay as:

a statement that
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

In other words, ask three questions:

1. Is there a statement?
2. Was it made out of court (i.e., not while testifying in this trial or hearing)?
3. Is it being offered to prove the truth of what it asserts?

Only if the answer to all three is “yes” do you have 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)]

Key Term: Declarant
The person who makes a statement. For hearsay purposes, the declarant must be a human being; animals and machines are not declarants. [FRE 801(b)]

Key Term: Out-of-Court Statement
A statement made at any time or place other than while the declarant is testifying at the current trial or hearing (including statements made in prior proceedings, depositions, or conversations).

Key Term: Truth of the Matter Asserted (TOMA)
The factual proposition that the statement asserts. A statement is offered for TOMA if its probative value depends on the assumption that what it asserts is accurate.

On the MBE, many questions turn on subtle uses of out-of-court statements that are not hearsay because they are not offered for TOMA. Distinguishing those uses from true hearsay is often the first—and most important—step.

A disciplined hearsay approach:

• Step 1: Identify the statement and the declarant.
• Step 2: Ask whether the statement was made out of court.
• Step 3: Ask why the proponent is offering it—what fact does it tend to prove?
• Step 4: Decide whether that fact depends on believing the statement is accurate (TOMA) or just that the statement was made or perceived.
• Step 5: Only if the statement is hearsay do you move on to hearsay exclusions (FRE 801(d)) and exceptions (FRE 803–807).

Components of Hearsay

To determine whether evidence is hearsay, you must analyze three core components:

1. Is there a “statement”?
2. Was it made “out-of-court”?
3. Is it being offered “for the truth of the matter asserted”?

If any one element is missing, the hearsay rule does not apply.

1. Statement

For hearsay purposes, a “statement” is:

• an oral assertion,
• a written assertion, or
• nonverbal conduct, if the person intended it 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

These are straightforward:

• A witness testifying, “Bystander said, ‘The blue car ran the red light.’”
• A letter stating, “The brakes on my car are defective.”
• A text message, “I’ll sell you my laptop for $500.”

Each contains an assertion—something claimed to be true.

Assertive Nonverbal Conduct

Nonverbal conduct is a “statement” only if it is intended to communicate a fact, i.e., it substitutes for words:

• A witness pointing at the defendant in a lineup to identify the robber.
• Nodding “yes” or shaking the head “no” in response to a question.
• Holding up two fingers to indicate “I saw two people.”

Because the person intends to assert something, this conduct counts as a statement for hearsay purposes.

Non-Assertive Conduct

Conduct not intended as an assertion is not a statement and therefore cannot be hearsay. The Federal Rules deliberately narrow the common law approach here.

Examples:

• Passengers calmly boarding a ship are not asserting “the ship is safe,” even though their conduct might be used circumstantally to show they believed it was safe.
• Shoppers crowding into a store are not asserting “this store has low prices,” though that may be inferred.

Because the actors did not intend to communicate those facts, their conduct is not a “statement,” and the hearsay rule does not apply.

Questions, Commands, and Imperative Phrases

Most questions and commands are not assertions and thus not statements:

• “What time is it?”
• “Close the door.”
• “Please pay me tomorrow.”

They do not assert facts; they request or direct action. However, be alert for embedded assertions:

• “Why did you run the red light?” implies an assertion that the light was red.
• “Tell my manager you forged the documents” asserts that “you forged the documents.”

On the MBE, the examiners sometimes test whether such language is functioning as a factual assertion.

Machine or Animal Output

Machines and animals cannot be declarants.

• A radar gun display showing “72 mph.”
• A breathalyzer reading.
• A drug-sniffing dog’s alert or barking at a car.

These are not “statements by a person” and are not hearsay. Concerns about accuracy and reliability are handled through other doctrines (e.g., authentication, expert testimony), not the hearsay rule.

Worked Example 1.1

Police stop a driver and run his car under a radar gun. At trial, an officer testifies, “The radar unit displayed 92 miles per hour.” The reading is offered to prove the car was traveling 92 mph. Is the radar display hearsay?

Answer:
No. The radar display is not a “statement” by a person; it is the output of a machine. The machine is not a declarant, so the hearsay definition is never satisfied. The reading may be challenged on accuracy or admissibility grounds, but not as hearsay.

Statements by Animals

Similarly, an animal’s behavior is not a statement:

• A drug dog barking and scratching at a door is not asserting “there are drugs here.”

Any testimony about the dog’s behavior is not hearsay (though expert qualification may be required).

Worked Example 1.2

Officers stop a car with a drug-sniffing dog present. The dog circles the car and barks and paws at the passenger door. At trial, an officer testifies about the dog’s reactions to support probable cause to search. Is the officer’s testimony about the dog’s behavior hearsay?

Answer:
No. The dog is not a person and cannot be a declarant. The dog’s barking and pawing are not “statements,” so the hearsay rule does not apply. The testimony may be admitted, assuming proper qualification of the officer and the dog’s training, without any hearsay issue.

2. Out-of-Court

The second component is whether the statement was made outside the current proceeding.

A statement is “out-of-court” if it was made at any time other than while the declarant is testifying at this trial or hearing:

• Statements made during prior trials, hearings, or depositions.
• Statements made to police, friends, co-workers, or on social media.
• Written statements in letters, emails, contracts, or medical records.

Even statements made earlier on the same day as trial—but outside the witness stand—are “out-of-court.”

Note: A witness’s own prior statements are out-of-court when repeated at trial. For example:

• At trial, Witness testifies: “Last year I told the police the light was green.”

The prior statement to police is out-of-court, even though the witness is now on the stand. Whether repeating that statement is hearsay depends on why it is offered.

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

The third element—the most heavily tested—is whether the statement is being offered for its truth.

A statement is offered for TOMA when its relevance depends on the assumption that the assertion is accurate. Ask yourself:

• If the assertion were false, would the statement still help prove the fact the proponent cares about?

If the answer is “no,” the statement is being used for its truth. If the answer is “yes,” it is being used for some other non-hearsay purpose.

Common non-hearsay purposes, discussed below, include:

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

Worked Example 1.3

Plaintiff sues Defendant for a car accident. Plaintiff offers Witness to testify, “Right after the crash, Bystander yelled, ‘The blue car ran the red light!’” The statement is offered to prove the blue car did, in fact, run the red light. Is this hearsay?

Answer:
Yes. The statement is (1) a statement (oral assertion), (2) made out-of-court (at the accident scene, not in this trial), and (3) offered for TOMA—to prove the light was red and the blue car entered against the signal. Its probative value depends entirely on whether Bystander’s assertion is accurate.

If, instead, the same words were offered for a different purpose (e.g., to show that Defendant had notice others thought he ran the red), the hearsay analysis could change.

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 what it asserts, it is not hearsay at all. No exception or exclusion is needed.

Three non-hearsay uses appear repeatedly on the MBE:

1. Verbal Acts (Legally Operative Words).
2. Effect on Listener or Reader.
3. Circumstantial Evidence of Declarant’s State of Mind.

1. Verbal Acts (Legally Operative Words)

Sometimes, the law attaches legal consequences to the fact that certain words were spoken or written, regardless of whether they were true. In such cases, the words are part of the very event being litigated. They are “verbal acts” or “legally operative facts.”

Key Term: Verbal Act
A statement offered to show its legal effect—words that themselves have independent legal significance (e.g., contract formation, defamation, threats, offers, acceptances).

Examples:

• Contracts: “I accept your offer.” The words themselves form a contract.
  • Offered to prove a contract was formed, not to prove anything about the content’s truth.
• Gifts: “I give you my watch.” Offered to prove a gift occurred, not that the watch is valuable.
• Threats (extortion / assault): “Give me your money or I’ll break your arm.” Offered to prove a threat necessary for the crime of extortion or assault.
• Defamation: “He is a thief.” In a defamation suit, the issue is whether the statement was made and published, not whether the victim actually is a thief.

In all of these, the existence of the statement—not its truth—is the legally relevant fact. Thus, the statements are not offered for TOMA and are not hearsay.

Worked Example 1.4

Defendant is on trial for extortion. The prosecution offers Witness to testify that Defendant said to the alleged victim, “You’d better do what I say, or I’ll hurt you.” The statement is offered to prove Defendant made a threat—an element of extortion. Is it hearsay?

Answer:
No. The words are legally operative—they are the alleged threat. The prosecution does not care whether Defendant truly intended to hurt the victim or could carry out the threat. The only relevant fact is that the threatening words were spoken. This is a classic verbal act, not offered for TOMA, and therefore not hearsay.

2. Effect on Listener or Reader

A statement can be offered to show its impact on the person who heard or read it, rather than to prove the stated facts. This is often used to show:

• Notice or knowledge.
• Motive.
• Reasonableness of conduct.
• Fear, duress, or other emotional states.

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 (e.g., notice, motive), not to prove the statement’s truth.

Examples:

• Notice: In a slip-and-fall case, a witness testifies that someone told the store manager, “There’s a spill in Aisle 4.”
  • Offered to show the manager had notice of a hazard, not that there was in fact a spill.
• Motive: Defendant was told, “Your partner is cheating you.”
  • Offered to show why Defendant later attacked the partner; not to prove the partner actually was cheating.
• Reasonableness of conduct: Plaintiff testifies, “I heard someone yell, ‘There’s a gas leak—get out!’”
  • Offered to explain why Plaintiff ran from the building; it does not matter whether there really was a gas leak.

If the probative value lies in the listener’s changed knowledge, motive, or emotional state, truth is irrelevant, so the hearsay rule does not apply.

3. Circumstantial Evidence of Declarant's State of Mind

A statement can be circumstantial evidence of what the declarant was thinking, feeling, or perceiving, apart from any accuracy of the facts asserted.

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, emotional, or perceptual state at the time.

Common state-of-mind uses:

• Sanity / mental condition: “I am Napoleon Bonaparte.” Offered to show a delusional belief, not that the speaker is Napoleon.
• Knowledge: “My brakes have been failing for weeks.” Offered to show the declarant knew about defective brakes, relevant to negligence or notice, whether or not the brakes were actually defective.
• Language ability: Someone gives a speech in French. Offered to show the person speaks French, not to prove the content of the speech.

Worked Example 1.5

In a murder trial, the prosecution offers evidence that the victim told a friend shortly before her death, “I am terrified of my husband.” The statement is offered to show that the victim would not have voluntarily met the defendant (her husband) that night. Is this hearsay?

Answer:
No. The statement is circumstantial evidence of the victim’s state of mind—she was afraid of her husband. The prosecution is not trying to prove that the husband was in fact dangerous or that any particular act justified her fear. The relevance is that a fearful person is less likely to voluntarily meet the source of that fear. Because the statement is not used for TOMA, it is not hearsay.

Worked Example 1.6

A person is trapped in a burning car after a crash. A witness testifies that she heard the person yell, “Tell my mom I love her!” The statement is offered to prove that the trapped person was alive after impact (relevant to a wrongful death claim). Is it hearsay?

Answer:
No. The statement is not offered to prove that the declarant actually loves his mother. It is offered as circumstantial evidence that the declarant was conscious and alive at the time he spoke. The truth of the words about love is irrelevant; the very act of speaking shows he survived the initial collision. This is a non-hearsay use.

Hearsay Within Hearsay (Multiple Hearsay)

Frequently, a single piece of evidence contains more than one out-of-court statement. This is hearsay within hearsay or multiple hearsay, governed by FRE 805.

Key Term: Multiple Hearsay
An out-of-court statement that itself contains one or more additional out-of-court statements. Each level must be admissible under a hearsay exception or exclusion.

For example, a letter can contain a quoted conversation, or a business record can incorporate information from an outsider. To admit the entire item, each level must be supported by:

• a non-hearsay purpose, or
• an exclusion (FRE 801(d)), or
• a hearsay exception (FRE 803–807).

Worked Example 1.7

At trial, Witness offers to read a letter from Brother. The letter states: “Mom told me yesterday that the red car was speeding.” Plaintiff offers the letter to prove the red car was speeding. How many layers of hearsay are present, and what is required for admissibility?

Answer:
There are two layers of hearsay:

-Inner layer: Mother’s oral statement to Brother (“the red car was speeding”). -Outer layer: Brother’s written statement in the letter (“Mom told me…”).

For the letter to be admitted to prove the red car was speeding, each layer must be admissible:

• Mother’s statement must fall under a hearsay exclusion or exception (e.g., excited utterance, present sense impression, or a statement against interest, depending on facts).
• Brother’s letter must independently qualify (e.g., as a business record, prior consistent statement, or some other exception).

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

On the MBE, watch for business records, public records, and police reports that quote other people. The record itself may fit an exception, but the quoted statements inside it might not—each level must be separately justified.

Brief Note: Statements Defined as “Not Hearsay” by Rule

In addition to non-TOMA uses, FRE 801(d) defines certain out-of-court statements as “not hearsay” even when they are offered for their truth:

• Certain prior statements of a testifying witness (prior inconsistent statements under oath, prior consistent statements, prior statements of identification).
• Statements offered against an opposing party (sometimes called “admissions of a party-opponent”).

These categories meet the literal definition of hearsay but are treated as outside the hearsay rule because the Rules conclude they are sufficiently reliable and their use is important. They are covered in detail in a separate discussion, but for this article you should recognize that not all hearsay issues are resolved by exceptions; some are resolved by definitional exclusions.

From a sequencing standpoint on the MBE:

1. First, apply FRE 801(c): is this hearsay?
2. If yes, check whether FRE 801(d) reclassifies it as “not hearsay.”
3. If not, look for exceptions (FRE 803–807).
4. In criminal cases, remember there may be additional Confrontation Clause limits.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay under FRE 801(c) is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible under FRE 802 unless an exclusion or exception applies.
• A “statement” is an oral or written assertion or nonverbal conduct intended as an assertion; questions, commands, non-assertive conduct, and animal or machine output are not statements.
• The declarant must be a person; animals and machines cannot be declarants for hearsay purposes.
• “Out-of-court” means any statement not made while testifying at the current trial or hearing, including statements in prior proceedings or earlier conversations.
• A statement is offered for TOMA when its probative value depends on the assumption that the asserted fact is accurate; if the statement would still be relevant even if false, it is usually not offered for TOMA.
• Out-of-court statements are not hearsay when offered as:
  • Verbal Acts (legally operative words, such as contract formation, gifts, threats, and defamation).
  • Proof of Effect on Listener or Reader (notice, knowledge, motive, duress, or reasonableness of conduct).
  • Circumstantial Evidence of Declarant’s State of Mind (belief, knowledge, insanity, fear).
• Statements like “Tell my mom I love her” can be non-hearsay when offered to show that the speaker was alive, not to prove love.
• Multiple hearsay (hearsay within hearsay) requires an exception, exclusion, or non-hearsay purpose for each layer of the statement to admit the combined evidence.
• FRE 801(d) defines certain prior witness statements and opposing-party statements as “not hearsay” even when offered for their truth; these are distinct from non-TOMA uses.
• On MBE questions, a systematic approach—identify the statement, the declarant, whether it is out-of-court, and the purpose for which it is offered—is essential before moving to exceptions or constitutional issues.

Key Terms and Concepts

• Hearsay
• Statement
• Declarant
• Out-of-Court Statement
• Truth of the Matter Asserted (TOMA)
• Verbal Act
• Effect on Listener or Reader
• Circumstantial Evidence of Declarant's State of Mind
• Multiple Hearsay