Evidence - Hearsay Part 1 Flashcards
Hearsay Basics
Basic Definition: An out of court statement asserted for its truth.
Hearsay is inadmissible unless an exception applies.
Policy basis for exclusion: the opponent can’t effectively cross X the person who made the statement at the time they made the statement. The person who made the statement’s credibility is at issue. That’s the problem hearsay presents.
Definition of Hearsay Part 1 - Statements
FRE defines hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement. 801(c).
HEARSAY = an out of court statement offered for the truth of the matter asserted.
A statement is a person’s assertion. A thumbs up, a middle finger, both assertions. Sometimes a rhetorical question could contain an assertion, or even a genuine question could also have an assertion baked in. A dog’s bark or fire alarm are NOT statements. Computer reports like time or date stamp are not statements. Not statements, therefore not hearsay.
When a person actually makes an out of court statement, they are called the declarant.
Definition Part 2 - Made Out of Court
Out of Court = statement was not made from the witness stand at this current trial or hearing.
Hearsay CAN include statements in court docs like affidavits or discovery or even in depositions. Even statements from a witness stand at a DIFFERENT, PRIOR trial. Even the declarant’s own out of court statement asserted for its truth is still hearsay.
Definition Part 3 - Truth of the Matter Asserted
Truth of the Matter Asserted (TOMA) = focuses on why the statement is being asserted. Are you asking the jury to accept the truth of what was said outside of court? If you aren’t, then there isn’t a hearsay problem.
A statement is offered for its truth when there’s a match between why it’s being offered and what the statement says.
If someone said something and it was only being offered to show that they were alive, and not offered for its truth, then it would NOT be hearsay.
Verbal Acts = not hearsay because the issue is simply whether the statements were made at all.
