Hearsay

MBEMax wiki article — paired with the Evidence question set on mbemax.com.

One-line summary

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted — inadmissible unless an exemption or exception applies.

Mnemonic

OS-TMA — Out-of-court Statement — Truth of Matter Asserted.

Picture a witness on the stand saying "Someone else told me…". If the offer is "so that's what actually happened," it's hearsay. If the offer is "so here's what the witness heard, and we're using it for a different reason," it may not be.

The rule (plain-language)

A statement is hearsay if it was made outside the current proceeding and is offered to prove what it asserts. Non-assertive conduct is not a statement. Statements offered for purposes other than truth (effect on listener, notice, verbal act, state of mind) are not hearsay.

Elements you must hit

1. Statement — oral, written, or assertive conduct.
2. Made by a declarant — a person (machine output and animal behavior are not statements).
3. Out of court — not made while testifying at the current trial or hearing.
4. Offered for truth — the proponent wants the factfinder to believe what it asserts.

NCBE loves to test

• Not-for-truth purposes. Effect on listener (notice, reasonableness), verbal acts (words that have legal significance — offer, acceptance, defamation), state of mind, impeachment by prior inconsistent statement not offered for truth, and verbal parts of an act.
• Prior statements that are NOT hearsay (FRE 801(d)(1)). Prior inconsistent statement under oath at trial/deposition/hearing, prior consistent statement offered to rebut a charge of recent fabrication OR to rehabilitate credibility, prior statement of identification. Declarant must testify and be subject to cross.
• Party-opponent admissions (FRE 801(d)(2)). Not hearsay at all. Includes: own statements, adopted statements, authorized spokesperson, agent/employee within scope, co-conspirator in furtherance.
• Availability matters for some exceptions but not others. 803 exceptions don't require unavailability. 804 exceptions do (former testimony, dying declaration, statement against interest, forfeiture by wrongdoing, family history).
• Confrontation Clause overlay (Crawford). In criminal cases, testimonial hearsay by a non-testifying declarant is inadmissible against the accused unless declarant is unavailable AND defendant had a prior opportunity to cross-examine. Testimonial = made to establish facts for later prosecution (police interrogations, forensic reports). Non-testimonial = casual remarks, 911 calls made for ongoing emergency.

Fast hypos

Hypo 1. Witness testifies: "My neighbor told me the sidewalk was slippery." Offered to prove the sidewalk was slippery? Hearsay. Offered to prove the store had notice of the icy condition? Not hearsay — effect on listener.

Hypo 2. Plaintiff offers a recording of defendant yelling "I'll pay you $50,000!" at defendant's own deposition. Party-opponent admission — not hearsay under FRE 801(d)(2)(A).

Hypo 3. Defendant on trial for murder. The prosecution offers the victim's written identification from a police lineup. Victim is now dead. Testimonial — inadmissible under Crawford unless defendant had prior opportunity to cross. A forfeiture-by-wrongdoing showing could unlock it.

Hypo 4. A dog trained to sit when it smells cocaine sits on a suitcase. The officer testifies to that fact to establish probable cause. Not hearsay — dog is not a declarant.

The big exceptions (memorize the triggers)

• Present sense impression — statement describing event while or immediately after perceiving.
• Excited utterance — statement relating to a startling event while under the stress.
• State of mind — then-existing mental, emotional, physical condition (but not memory/belief of past facts to prove the fact).
• Medical diagnosis/treatment — statements to medical providers for diagnosis or treatment, including cause.
• Recorded recollection — past recollection recorded; read into evidence, not received as exhibit.
• Business records — regular activity, made at or near the time, by someone with knowledge, kept in regular course; authenticated by custodian or certification.
• Public records — activities of the office, observations under legal duty (not police observations in criminal cases against defendant), factual findings of investigation in civil and against-government criminal.
• Former testimony — unavailable declarant; given at prior trial/hearing/deposition; opponent had similar motive and opportunity to develop.
• Dying declaration — unavailable declarant; belief imminent death; concerning cause or circumstances of death; homicide prosecutions and civil cases.
• Statement against interest — unavailable declarant; contrary to proprietary, pecuniary, or penal interest; corroboration required if offered to exculpate criminal defendant.

Case anchors

• Crawford v. Washington, 541 U.S. 36 (2004) — testimonial statements require prior cross.
• Davis v. Washington, 547 U.S. 813 (2006) — 911 calls during ongoing emergency are non-testimonial.
• Bullcoming v. New Mexico, 564 U.S. 647 (2011) — forensic lab reports are testimonial.
• Giles v. California, 554 U.S. 353 (2008) — forfeiture exception requires intent to make declarant unavailable.

See also

• Impeachment
• Character
• Privileges
• Authentication
• Relevance — FRE 403

Sources

Fed. R. Evid. 801–807; Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006); Bullcoming v. New Mexico, 564 U.S. 647 (2011); Giles v. California, 554 U.S. 353 (2008); Ohio v. Roberts, 448 U.S. 56 (1980) (pre-Crawford framework, superseded).