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5 Ways to Know If It's Hearsay

Updated on April 16, 2015

He Said She Said

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What Is Hearsay?

There are many misconceptions about hearsay. People often use the term without really knowing what it means. Definitionally, hearsay is an out of court statement offered in court to prove the truth of the matter asserted. This means the statement is offered in a court of law for the purpose of establishing the truth of the contents within the statement. For example, say Lucy Lawyer offers this statement that Winnie Witness made a year before trial: "Danny Defendant ran that red light." If the reason that Lucy offered the statement is to prove that Danny ran the red light, the statement is inadmissible because it's hearsay. If Lucy can find a purpose for introducing statement other than proving the contents of the statement, and the statement is offered for a non-herasay purpose, then it's not hearsay. Easy enough, right?

Who Ran the Red Light?

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How to Know

The easiest way to figure out if a statement is hearsay is to follow these steps:

  1. Locate the statement made by the declarant (the person who made the statement),
  2. Locate the witness who will report in court what was stated out of court by the declarant, or locate the writing that will report in court what was written out of court,
  3. Determine what the statement is being offered to prove,
  4. Write it out, with quotation marks around the statement,
  5. Ask yourself: is what I just put quotation marks around being offered for the purpose of establishing the truth of what I just put quotation marks around?

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The Hearsay Rule

Under the Federal Rules of Evidence Article VIII, Rule 801 lays out everything that has to do with hearsay. A "statement" is a person's oral or written assertion, or nonverbal conduct, if the person intended it as an assertion—think: nodding, pointing, etc. As you know, the "declarant" is the person who made the statement. "Hearsay" under Rule 801 is a statement that the declarant doesn't make while testifying at the current trial or hearing, and—as you know—a party offers in evidence to prove the truth of the matter asserted in the statement.

Rule 801 has information on statements that are not hearsay. Statements that meet these conditions are not hearsay:

1. If it's a declarant-witness' prior statement: the declarant testifies and is subject to cross-examination about a prior statement, and that statement

a) is inconsistent with his testimony and was given under penalty of perjury at a trial, hearing or other proceeding or in a deposition;

b) is consistent with his testimony and is offered

i) to rebut an express or implied charge that he recently fabricated it or acted from a recent improper influence or motive in so testifying; or

ii) to rehabilitate his credibility as a witness when attacked on another ground; or

c) identifies a person as someone he perceived earlier.

2. If its an opposing party's statement: the statement is offered against an opposing party and

a) was made by the party in an individual or representative capacity;

b) is one the party manifested that he adopted or believed to be true;

b) was made by a person whom the party authorized to make a statement on the subject;

d) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

e) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Non-hearsay clearly divides itself into a few categories: impeachment with inconsistent statement—if it's not offered to prove the truth of the matter asserted and it is offered to discredit the testimony of a witness; a verbal act—a statement with independent legal significance (think: offer, acceptance, cancellation of contract, defamation)—not offered for its truth, but only to show that the statement was made; effect on listener or reader—to show knowledge possessed or what notice the person is put on, or to explain actions (to show why someone acted a certain way, such as motive or in good faith); and the declarant's state of mind—to show what it is and what his mental health situation is, or to show the knowledge possessed by the declarant.

There may be multiple reasons why a statement is or is not hearsay, but you only need one!

Hearsay in Court

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Examples

Say you have a witness, Winnie, on the stand testifying about an earlier statement that he made. In court, right now, he states that the light was red when Danny drove through the intersection. But before, out of court, he said that the light was green. Lucy can introduce the statement Winnie made out of court because it is not being offered to show proof of the statement that the light was green. It is actually being offered to discredit Winnie, the witness. If Lucy really wants to discredit Winnie she could ask her which is true, and go on about the inconsistency to make Winnie look unbelievable.

What about verbal action? William Witness is on the stand offering his own testimony. His testimony includes an out of court statement made by Doloris Declarant. What if Doloris' statement was a verbal act. Say this verbal act includes a transfer of title and possession of a car to William. Well, Doloris' words are actually a legal act. So her statement is a substitute for the transfer of title to William. This is not hearsay because the out of court statement has independent legal significance.

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Are There Exceptions to the Rule?

Of course! If the declarant is unavailable, there are a few out of court statements that can be offered to prove the truth of what they assert. Keep in mind, these are allowed in as exceptions, even though they are hearsay. Unavailability means that the declarant is: either privileged from testifying on that subject matter; persists in refusing to testify, despite court order; lacks memory regarding the subject matter of the out of court statement; is unavailable as a result of death or then-existing physical or mental illness or infirmity; or is absent from the hearing and the out of court statement proponent has been unable to get the declarant there by process or other reasonable means. The declarant is not considered unavailable if there is the exemption, refusal, lack of memory, etc. is for the purpose of preventing the witness from attending or testifying. The former testimony hearsay exception can be satisfied if the declarant is unavailable and there is former testimony by the declarant that is under oath in a proceeding or deposition. The party against whom the out of court statement is offered must have had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. This can be in a criminal case by the opponent or a civil case by the opponent or predecessor in interest.

Other exceptions exist when the availability of the declarant is immaterial. Present sense impression is when a statement is made describing an event or condition. The declarant would make this type of statement while perceiving or immediately after perceiving an event or condition. This can happen when someone describes an accident to an officer right after it happened. The event was something external to the declarant and something he perceived, not felt. His mentality is immaterial, but the statement must be made while the event is happening or immediately after—within a few minutes. The content of the statement must describe or explain the event or condition.

An excited utterance is a statement relating to a startling event or condition. This would be made while the declarant was under the stress of excitement caused by the event or condition. The event must be startling to the declarant. His mentality is material here—he must be stressed or excited by the event. The statement must be made while under stress or excitement. The content of the statement needs to relate to the event or condition.

There are mental state, medical statement and other exceptions, but those will not be covered in this article. We've talked enough about hearsay for today!

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