8: Hearsay

Question 1

Declarant

Answer 1

The declarant—i.e., the maker of the statement—must be a person.

Question 2

Declarant: witness’s prior statements

Answer 2

A witness’s own prior statement may be hearsay, and if hearsay, the witness may be prohibited from testifying as to her own statement unless an exception or exclusion applies.

Question 3

Assertion

Answer 3

A statement is a person’s oral or written assertion, or it may be nonverbal conduct intended as an assertion, e.g., a defendant nodding his head up and down to indicate a “yes” answer to a question.

Question 4

Nonassertive conduct

Answer 4

Nonassertive conduct is not hearsay.

E.g., a pilot’s act of flying an airplane, when such evidence is offered as evidence of the plane’s safety.

Question 5

Multiple hearsay

Answer 5

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception.

A person’s repetition to another of the statement sought to be admitted is double hearsay.

Question 6

Animals and machines

Answer 6

Evidence generated by a machine or an animal is not hearsay and is admissible without qualifying under a hearsay exception.

Question 7

Multiple hearsay: affidavits offered at summary judgment

Answer 7

If an affidavit is submitted by a non-moving party in response to a summary judgment motion, the affidavit represents what the declarant would testify to at trial.

Consequently, the only out-of-court statement for purposes of the summary judgment motion is the statement referenced in the affidavit.