Hearsay Basics

Question 1

What kinds of out-of-court statements are specifically excluded or exempted from the definition of hearsay? (Considered nonhearsay or not hearsay)

Answer 1

Certain prior statements by a witness and Admission by a party-opponent.

Question 2

Is a witness’ prior inconsistent statement made while under oath at a prior proceeding admissible?

Answer 2

Yes. So long as statement was made under oath and during a formal trial, hearing, proceeding or deposition. It is not hearsay or nonhearsay.

Question 3

Is a witness’ prior statement of identification admissible?

Answer 3

Yes, so long as declarant testifies at trial and is subject to cross-examination. This is excluded from the definition of hearsay. It is not hearsay or nonhearsay.

Question 4

Is a witness’ prior CONSISTENT statement admissible?

Answer 4

Yes, so long as the statement rebuts the charge of lying or exaggerating and the statement was made before the motive to lie or exaggerate arose.

Question 5

Declarant is unavailable because of:

Answer 5

Assertion of Privilege, refusal to testify, incapacity, failure to comply with subpoena, lack of memory.

Question 6

Declarant must be unavailable to testify when this evidence is introduced:

Answer 6

former testimony, dying declaration, declaration against interest.

Question 7

What kinds of statements are exceptions to the hearsay rule? (Admissible hearsay)

Answer 7

Present sense impression, excited utterance, statements of then-existing physical, emotional, or mental condition, medical exception, past recollection recorded, business record exception, public records exception.

Question 8

Charlotte testifies that “When I went to work, Marilyn told me that told Jackie her that Jane said she was fixing to kill someone.” is an example of:

Answer 8

Hearsay within hearsay. Multiple hearsay is admissible where each statement meets some kind of hearsay exception.

Question 9

Out of court statements that are not offered to prove the truth of the matter asserted in the statement is admissible because:

Answer 9

It is not hearsay.

Question 10

The witness’ testimony saying that “I saw both the defendant and plaintiff shake hands while saying I’ll take your offer, you’ve got a deal” is admissible because:

Answer 10

“I’ll take your offer. You’ve got a deal” is a verbal act under legally operative facts and is therefore not hearsay.

Question 11

Testimony that the defendant said “There are small fairies living in my neighbor’s yard” in a trespassing case is admissible to show:

Answer 11

Circumstantial Evidence of Declarant’s State of Mind. Not hearsay as it is not offered to prove that fairies live in her neighbor’s yard.