Hearsay Rule

• Author: Ashley S. Lipson
• Pages: 103-142

5-1

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? 5-2

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 Pharmaceu-

ticals, 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

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. “Lloyd Price told me that Stag-

gerlee 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 explain-

ing 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 numerous excep-

tions, 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 defen-

dant 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 San-

dra, 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 mur-

der 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

5-3 Hearsay Rule §5.200

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 hear-

say 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 wit-

ness consists of a hand motion or “assertive” ges-

ture. 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.

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; rath-

er, I’m offering it to show notice

(or knowledge) 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 con-

sidered to be hearsay under the

rules.

D. [Non-Hearsay/Inconsistency] :

“Your Honor, the offered prior-

statement contradicts the state-

ment just made by this witness.

Prior inconsistent statements are

not hearsay.”

E. [Recognized Hearsay Exception] :

“Your Honor, the offered state-

ment 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 trust-

worthy 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.”