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? 5-2
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.”
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.
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; rath-
er, I’m offering it to show notice
(or knowledge) on the part of the
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
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.”
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT