Hearsay Rule

• Author: Ashley S. Lipson
• Pages: 93-129

5-91

chApter 5

Hearsay Rule

§5.100 Introduction

§5.200 Quick Explanation

§5.300 General Legal Analysis

§5.400 Hearsay Exceptions

§5.401 Former Testimony

§5.401.1 State Application

§5.402 Past Recollection Recorded

§5.402.1 State Application

§5.403 Declarations Against Interest

§5.403.1 State Application

§5.404 Admissions

§5.404.1 State Application

§5.405 Prior Inconsistent Statements

§5.405.1 State Application

§5.406 Statements of Mental or Physical Condition

§5.406.1 State Application

§5.407 Dying Declarations

§5.407.1 State Application

§5.408 Spontaneous or Contemporaneous Declarations

§5.408.1 State Application

§5.409 Statements of Reputation

§5.409.1 State Application

§5.410 Business Records and Other Documents

§5.410.1 State Application

§5.411 Residual Exception

§5.411.1 State Application

§5.500 Comparative Chart — Hearsay Exceptions

§5.100 Is It Admissible? 5-92

1 Utz v. Running & Rolling Trucking, Inc., 32 So.3d 450 (Miss., 2010). In a widow’s wrongful death action against a

trucking company that owned a truck involved in a fatal collision with an automobile, a witness’s testimony that the

automobile driver had participated in cooking and smoking methamphetamine with him without sleeping for several

days prior to the collision was not hearsay and was thus admissible; the witness did not testify as to any “statements”

of the automobile driver.

Hearsay can only come from a person, not a machine, robot, or other non-human device. See State v. Kandutsch, 792

N.W.2d 239 (Wis.App., 2010).

2 Verna v. Public Health Trust of Miami-Dade County, 539 F.Supp.2d 1340 (S.D.Fla., 2008). Evidence that is not offered

for the truth of the matter asserted is not hearsay. Kemp v. Kemp, 831 N.E.2d 1038, 161 Ohio App.3d 671 (2005);

Farrell v. Bass, 879 A.2d 516, 90 Conn.App. 804 (2005); Lexington Insurance Company v. Western Pennsylvania

Hospital, 423 F.3d 318 (3rd Cir., Penn., 2005); Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67

(1st Cir., Puerto Rico, 2005); Taylor v. Abernethy, 620 S.E.2d 242 (N.C.App., 2005); Floyd v. Floyd, 615 S.E.2d 465,

365 S.C. 56 (2005); Miller v. Hometown Propane Gas, Inc., 167 S.W.3d 172, 86 Ark.App. 189 (2004).

§5.100 Introduction

As the word suggests, “hearsay” refers to state-

ments that the witness has “heard” from someone

else.1 When he or she then attempts to “say” them

in court in order to prove their truth, hearsay occurs.

“Lloyd Price told me that Staggerlee shot Billy,”

would be hearsay if I were to make the statement at

Staggerlee’s murder trial.

A critical element in determining whether or not

something is hearsay is whether the statement is being

used to prove the truth of the actual facts contained

in the statement. The above question would not, for

example, be hearsay at a copyright infringement

trial if, as a witness, I were explaining the subject

of Lloyd Price’s rock-and-roll hit record of the 50’s

(Staggerlee); in that case, Billy’s murder would not at

all be relevant. He is probably a fictitious character,

in any event. For these reasons, and the rule’s numer-

ous exceptions, hearsay is one of the most complex

and misunderstood objections in the entire body of

evidence. As a matter of fact, almost half of the law

of evidence deals with just the exceptions.

§5.200 Quick Explanation

To provide a “quick explanation” of the hearsay

rule is almost a contradiction in terms. Basically,

hearsay occurs when a witness attempts to prove the

truth of some assertion by repeating what someone

else said, because he (the witness) didn’t happen to

observe the event firsthand.

For each of the examples listed below (and for

any “hearsay” determination), it is critical to know

the purpose or reason for asking the question. For

our examples, let’s assume that a murder trial is

involved, and that the statements are being offered

to prove the facts contained in them. Remember—

if the statements are being offered for some other

reason, they would not be considered to be hear-

say.2 Such non-hearsay statements are sometimes

referred to as “non-assertive.”

EXAMPLES OF HEARSAY QUESTIONS:

1. Did Joe tell you that he saw the defendant

murder Sandra?

2. What did the police reports say about the

murder weapon?

3. After the murder, did you see anyone point

the finger at the defendant?

Consider the first question. Assuming that the

defendant is on trial for the murder of Sandra, the

attempt to “say” what Joe said is hearsay and should

not be admitted into evidence. For, it would be clear

that the statement by Joe is being offered to prove

the truth of the matters asserted in that statement.

If Joe claimed that he saw the defendant murder

Sandra, then it would be quite proper for Joe to take

the stand to tell the court and jury exactly what he saw.

That way Joe would be subject to cross-examination.

If he were lying, presumably the truth would come

out. But when a witness says that somebody else said

something, it is impossible to cross-examine that wit-

ness for the truth of the statement, since that witness

would only be repeating what he or she had heard.

Now assume, for the moment, that we were

not dealing with a murder trial, but instead, we

are observing a sanity hearing for Joe, who had

been running around town naked, claiming that he

saw people being murdered who in fact were not.

Assume further that Sandra is alive and well, and in

court. The issue might then turn to whether or not

5-93 Hearsay Rule §5.300

3 U.S. v. Rivera-Hernandez, 497 F.3d 71, 74 Fed. R. Evid. Serv. 122 (1st Cir., Puerto Rico, 2007).

See Rogers v. Board of Educ. of City of New Haven, 749 A.2d 1173, 252 Conn. 753 (2000); In re A.N., 995 P.2d 427

(Mont., 2000); Weaver v. Tech Data Corp., 66 F.Supp.2d 1258 (M.D.Fla.,1999). See also Kempt v. Qualls, 326 Pa.

Super. 319, 473 A.2d 1369 (1984); Whitman v. Riddell, 324 Pa. Super. 177, 471 A.2d 521 (1984); Ours v. West Virginia

Dept. of Motor Vehicles, 315 S.E.2d 634 (W.Va. 1984); Worcester Textile Co. v. Morales, 468 A.2d 279 (R.I. 1973).

Joe made such a statement, as opposed to whether or

not the statement were true or false. In such a case,

the statement by Joe would not be hearsay, because

the truth of the matter asserted in that statement (i.e.,

the murder of Sandra) would not be an issue.

The second sample question is used to show

that written statements are the same as verbal ones

with respect to the application of the hearsay rule.

In other words, a statement in writing that is offered

to prove the truth of the matters contained therein is

just as much hearsay as a verbal statement. It just so

happens that certain portions of police reports may

be considered as “official records,” and, therefore,

they come within an exception to the hearsay rule,

assuming that a proper foundation is laid. We will

cover the hearsay exceptions shortly.

The third example requires a little bit of thought.

The “statement” made by the outside witness con-

sists of a hand motion or “assertive” gesture. But

it is nevertheless a statement. Think about that for

a moment; the term “pointing the finger” is real-

ly equivalent to saying “that person committed the

crime.” Therefore, it is hearsay, in any event.

WHAT TO LOOK FOR:

Questions that ask the witness to talk about

something that he or she did not personally observe.

OBJECT AND RESPOND

OBJECTION:

“Objection! Hearsay.”

POTENTIAL RESPONSES TO

OBJECTION:

A. [Non-Hearsay/State of Mind]:

“Your Honor, I’m not offering this

statement to prove its truth; rather, I’m

offering it to show the state of mind of

the declarant.”

B. [Non-Hearsay/Notice]:

“Your Honor, I’m not offering this

statement to prove its truth; rather, I’m

offering it to show notice (or knowl-

edge) on the part of the recipient.”

C. [Non-Hearsay/Admission]:

“Your Honor, this is an admission.”

Admissions can always be used

against the parties that make them;

they are not even considered to be

hearsay under the rules.

D. [Non-Hearsay/Inconsistency] :

“Your Honor, the offered prior-state-

ment contradicts the statement just

made by this witness. Prior inconsistent

statements are not hearsay.”

E. [Recognized Hearsay Exception] :

“Your Honor, the offered statement

falls within the ___________ hearsay

exception (See §5.401 through §5.410.)

F. [ Song and a Prayer Exception (i.e.,

Residual Exception)]:

“The offered statement is trustworthy

and more probative than any other

obtainable evidence on the subject;

opposing counsel was told about the

intended use of this testimony.”

REPLIES TO RESPONSES:

A. [Universal Reply for any attempt to use

hearsay]:

“The statement is not trustworthy.”

B. [Reply to Response E]:

“Opposing counsel has not presented

a proper foundation for the exception

that he or she claims.”

§5.300 General Legal Analysis

Perhaps a good place to start the legal analysis

would be with Rule 801(c) of the Federal Rules of

Evidence. That rule defines hearsay in this manner:3

Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testi-

fying at the current trial or hearing; and