The Basics of Hearsay

Question 1

What is hearsay?

Answer 1

Hearsay is a declarant’s out-of-court oral or written assertion, including nonverbal communicative conduct, that a party offers in court to prove what the statement asserts.

Question 2

Is hearsay admissible?

Answer 2

Hearsay is generally inadmissible, unless an exception applies or the court finds equivalent circumstantial guarantees of trustworthiness, it is more probative than other reasonably available evidence, justice so requires, and the proponent gives pretrial notice of the intent to offer.

Question 3

What constitutes a “statement” for the purposes of hearsay rules?

Answer 3

“Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Question 4

Can conduct ever be considered a statement?

Answer 4

Sure. When a declarant intends that conduct be a substitute for words, it can be considered non-verbal assertive conduct.

Question 5

What is a verbal act?

Answer 5

A verbal act is a statement that has legal significance at the moment it is uttered, regardless of its truth or falsity. Examples are words of offer, acceptance, or rescission in Contract law, or defamatory words in Tort law. All that legally matters is that those particular words were uttered or written.

Question 6

Hearsay is a declarant’s out-of-court oral or ________ assertion, or __________ that a party offers in court to ___________________.

Answer 6

written

nonverbal conduct

prove the truth of the matter asserted.

Question 7

Hearsay is generally _________ unless an exception applies.

Answer 7

inadmissible

Question 8

A declarant is the ______ who made the ________.

Answer 8

person

statement

Question 9

Generally, _________ and ________ cannot be considered declarants.

Answer 9

animals

machines

Question 10

Steps in a Hearsay Analysis

Answer 10

Step 1: Identify the declarant and the witness testifying about it in court.

Step 2: Determine whether the declarant has made an assertive statement.

Step 3: Determine whether or not the statement was one that the declarant did not make while testifying at the current trial or hearing.

Step 4: Determine whether the statement was offered to prove the truth of the matter asserted in the statement.

Question 11

The following are some common examples of statements NOT offered for the truth of the matter asserted:

Answer 11

1. Verbal Acts
2. Effect on the listener
3. Declarant’s Implied belief
4. Circumstantial evidence of declarant’s state of mind
5. Statements used to impeach

Question 12

_________ have legal significance at the moment they are uttered, regardless of their truth or falsity. All that matters is that those particular words were uttered or _______.

Answer 12

Verbal acts

written