Hearsay Rule

AuthorAshley S. Lipson
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.”
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.
Questions that ask the witness to talk about
something that he or she did not personally observe.
“Objection! Hearsay.”
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.”
A. [Universal Reply for any attempt to use
“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

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