Hearsay Rule

AuthorAshley S. Lipson
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.”
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.
Questions that ask the witness to talk about
something that he or she did not personally observe.
5-3 Hearsay Rule §5.300
“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: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,

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