Hearsay Rule

• Author: Ashley S. Lipson
• Pages: 97-134

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C 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? 5-2

§5.100 Introduction

As the word suggests, “hearsay” refers to

statements 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.

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. Because of its numerous

exceptions, the hearsay rule provides 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. Unlike objections as to form, a

hearsay objection deals with substantive, often

determinative evidence. 2

§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 hearsay.3

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 witness 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 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

consists 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

really 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.

5-3 Hearsay Rule §5.300

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:4

Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testi-

fying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth

of the matter asserted in the statement.

As a follow up, Fed. R. Evid. 802 states that

hearsay is not admissible except as provided by

the Federal Rules or other rules prescribed by

the Supreme Court.5 Regardless of whether the

jurisdiction is state or federal, hearsay evidence is

inadmissible unless it falls within an exception.6

With respect to evidence in general, perhaps

the biggest mistake that lawyers make involves a

failure to properly determine whether or not the

material contained within the statement is actually

being offered to prove the truth of the statement. If

not, the statement is not inadmissible hearsay.7

Consider Wal-Mart Stores, Inc. v. Dolph,8 a

case involving an alleged slander by a Wal-Mart

employee. The plaintiff testified that her relative

was told by the employee that she (the plaintiff)

had been caught shoplifting. The statement was

admissible to prove publication of the slander; it

was not offered to prove that plaintiff was or was

not a shoplifter and, therefore, was not hearsay.

First and foremost, there must be some

statement of “fact” involved. If the statement does

not assert a fact, then it cannot be hearsay. A threat,

for example, is not a statement of fact; rather, it

is a future promise to do injury. The contents of

a threatening telephone call would, therefore, not

constitute inadmissible hearsay,9 nor would tape-

recorded telephone conversations that were only

offered to show a pattern of verbal behavior on

the telephone.10 Both items of evidence would,

therefore, be admissible.

It is important to remember that even if the

statement includes a fact reported to the witness

by someone else, that statement will not constitute

hearsay unless it is offered (by the witness) to prove

the truth of that included fact.11 Often, facts relayed

by others will be used as a foundation for action

taken by the person who heard those facts. Assume,