Non-Hearsay

Question 1

Generally, what is considered non-hearsay?

Answer 1

If an out of court statement is NOT offered to prove the truth of the matter asserted, the statement is NOT hearsay and is admissible.

Question 2

What are four examples of out of court
statements that are NOT offered to prove the truth of the matter asserted?

Answer 2

1. Verbal acts of independent legal significance (i.e., statement is offered to prove that the statement itself was made, irrespective of its truth– e.g., defamatory statements, threats).
2. Statements offered to show the effect on the listner;
3. Statements offered to show the declarant’s mental state or state of mind; AND
4. Statement’s offered for impeachment purposes.

Question 3

Under what circumstances are prior inconsistent statements admissible for substantive proof?

And when can it not be admitted?

Answer 3

Prior inconsistent statement are admissible for substantive purposes if:

1. The declarant is testifying at trial and is subject to cross-examination;
2. The statements were previously made under penalty of perjury; AND
3. The prior statements are inconsistent with present testimony being given at trial.

If the statements were NOT previously made under penalty of perjury, they can be offered only for impeachment purposes. (not substantive purposes)

Question 4

When can prior consistent statements be admitted?

Answer 4

Prior consistent statements are admissible to rebut a claim that the declarant is fabricating or has a recent motive to fabricate the statement in court if:

a. The declarant is testifying at trial and is subject to cross-examination; AND

b. The prior consistent statement was made before the declarant had a motive to fabricate the statement.

Question 5

When are prior statements of identification admissible?

Answer 5

Prior statements of identification (e.g., prior out of court identification in lineups, photo arrays, etc.) are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-examination.

Question 6

What are admissions by a party opponent?

Answer 6

Admissions by a party opponent (prior out of court statements made by a party to the current litigation that are offered by the opposing party) are admissible as non-hearsay.

Question 7

What is an adoptive admission as it pertains to admissions by a party opponent?

Answer 7

Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement.

Question 8

What is a vicarious admission as it pertains to admissions by a party opponent?

Answer 8

Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent.