Hearsay Flashcards
What is Hearsay
A statement is hearsay if it:
1. Was made out of court (not during the current trial or hearing);
2. Was made by a declarant (a person who made the statement); and
3. Is being offered for the truth of the matter asserted (to prove the fact stated in the statement).
💡 KEY POINT: If a statement is not offered for its truth, it is not hearsay.
Breraking Down Hearsay
What is a “Statement”
A statement can be:
* Oral – “I saw the defendant rob the store.”
* Written – A letter saying, “John owes me $1,000.”
* Nonverbal conduct intended as an assertion – Nodding “yes” or pointing to a suspect.
🔹 Example: A police officer testifies that a witness nodded “yes” when asked if the defendant committed the crime.
✅ Hearsay (because it is a nonverbal assertion made out of court).
Breraking Down Hearsay
Who is the Declarant?
The declarant is the person who made the statement.
The witness is the person testifying in court about the statement.
If the declarant testifies about their own statement, it is not hearsay.
🔹 Example: David is on trial for robbery. The prosecutor calls Sarah to testify.
✅ Hearsay: Sarah says, “Mark told me that David robbed the store.”
🚫 Not Hearsay: Sarah says, “David told me, ‘I robbed the store.’” (This is an admission by a party-opponent, which is not hearsay).
Breraking Down Hearsay
When is a Statement “Offered for the Truth”?
- Hearsay if used to prove the fact asserted in the statement.
- Not Hearsay if used for another purpose.
🔹 Example: - Prosecutor offers a witness’s statement: “The light was red.”
o Hearsay? Yes, if it is used to prove the light was actually red.
o Not Hearsay? No, if it is used to show that the witness was confused about what they saw.
Fed. R. Evid. 802
When is Hearsay is Inadmissible?
Unless an exemption or exception applies, hearsay is not admissible.
Hearsay Exemptions (Statements That Are Not Considered Hearsay)
- Prior Statements by a Witness (Fed. R. Evid. 801(d)(1))
- Opposing Party’s Statements (Fed. R. Evid. 801(d)(2))
Hearsay Exemptions: (Statements That Are Not Considered Hearsay)
Prior Statements by a Witness (Fed. R. Evid. 801(d)(1))
A witness’s own prior statement is not hearsay if:
1. The witness testifies at trial and
2. The witness is subject to cross-examination about the prior statement.
These include:
* Prior inconsistent statements (if made under oath at a formal proceeding);
* Prior consistent statements (if used to rebut a claim of fabrication);
* Prior identifications (if the witness previously identified the suspect).
🔹 Example: A witness picked the defendant out of a lineup. That prior identification is not hearsay.
Hearsay Exemptions: (Statements That Are Not Considered Hearsay)
Opposing Party’s Statements (Fed. R. Evid. 801(d)(2))
A party’s own statement can be used against them and is not hearsay.
🔹 Example:
* Defendant says, “I stole the money.” → Not Hearsay (Statement of a party-opponent).
Hearsay Exceptions – When Hearsay is Allowed
Statements Admissible Regardless of the Declarant’s Availability (R.803)
- Present Sense Impression – Statement made during or immediately after an event.
🔹 Example: “Wow, that car is speeding!” - Excited Utterance – Statement made under stress or excitement.
🔹 Example: “That truck ran the red light!” - Then-Existing Mental, Emotional, or Physical Condition
🔹 Example: “I feel sick after eating that soup.” - Statements for Medical Diagnosis or Treatment
🔹 Example: “My back hurts because I slipped on ice.” - Business Records – Records regularly kept in business.
🔹 Example: A hospital’s patient records. - Public Records – Government records.
🔹 Example: Birth certificates, police reports.
Hearsay Exceptions – When Hearsay is Allowed
Statements Admissible Only if the Declarant is Unavailable (Rule 804)
A declarant is “unavailable” if they:
* Are dead;
* Are ill or mentally incompetent;
* Refuse to testify despite a court order;
* Claim privilege (e.g., attorney-client privilege);
* Cannot be found despite reasonable efforts.
If the declarant is unavailable, these exceptions apply:
1. Former Testimony – If the opposing party had a chance to cross-examine the witness, their prior testimony can be used.
2. Dying Declaration – Statement made under belief of imminent death, about the cause of death.
🔹 Example: “The man in the red jacket shot me.”
3. Statement Against Interest – Statement that goes against the declarant’s own interest (e.g., admitting a crime or liability).
4. Forfeiture by Wrongdoing – If the defendant caused the witness to be unavailable (e.g., threats), their statements can still be used.
The Confrontation Clause (Sixth Amendment)
- In criminal cases, a defendant has the right to confront their accuser.
- Testimonial hearsay (like police reports) cannot be admitted unless the defendant had a chance to cross-examine the declarant.
🔹 Example: - 911 call describing a crime → Admissible (because it’s an emergency).
- Police report describing the crime → Not admissible (testimonial hearsay).
Hearsay Within Hearsay (Double Hearsay)
Hearsay within hearsay (also called double hearsay) occurs when one hearsay statement contains another hearsay statement inside it
