Out of court statement offered to prove the truth of the matter asserted.
Inadmissible unless an exception applies.
⭐️ Memorize this definition.
Who qualifies as a declarant for hearsay?
Must be a human being. Evidence from animals and machines are not statements (e.g. dog barking or machine printout)
What is considered a statement for hearsay purposes?
Written assertion; or
Nonverbal conduct/gestures, if the person intended it as an assertion (e.g. shaking your head "yes")
What type of statements do not constitute "offering to prove the truth of the matter asserted," and thus are considered nonhearsay?
- Statements that have independent legal significance (e.g. tortious words, defamation, transactional words ("I accept the offer");
- Statements to prove the state of mind of the declarant or the listener;
- Statements to show the effect on the listener (e.g. to show D saying "I'm going to kill you" frightened P);
- Statements offered solely for impeachment
⚠️ Be careful: Some statements are admissible because they are nonhearsay. Some statements are admissible because they are hearsay and qualify under an exception.
Are statements by an opposing party admissible as nonhearsay?
Yes, out-of-court statements made by a party to the litigation are always admissible as nonhearsay when offered by the opposing party.
Ex. Max is suing Ian for negligence. All of Ian's and Max's out-of-court statements are admissible.
What type of opposing party statements are considered nonhearsay according to the FRE?
Representative/vicarious admissions by:
Agent/employee in scope of relationship;
Authorized speaker; or
- Agent/employee in scope of relationship;
- Authorized speaker; or
What type of declarant-witness statements (that would otherwise be hearsay) are considered nonhearsay according to the FRE?
- Prior sworn inconsistent statements;
- Prior consistent statement; and
- Prior identification
⚠️ Remember: These are not hearsay exceptions. They are considered nonhearsay, or "hearsay exemptions."
Statement by a party in the current litigation that was either made in the pleadings, during discovery, or during trial.
Admissible as nonhearsay.
What is an adoptive admission?
Statement made by another person that the party adopts/agrees with. Two ways to adopt:
- Expressly (clear words of agreement); or
By silence if:
- The party heard and understood the statement;
- A reasonable party would have denied/responded to the statement; and
- The party did not deny or respond
⚠️ Note: Failure to respond during a custodial interrogation after Miranda warnings does not constitute an adoptive admission
What is a representative or authorized admission? (also called a vicarious admission)
Statement made by another that is imputed to the party, either because the party authorized it or has a special relationship with the speaker. Three types:
- Statements made by employee/agent;
- Statements made by authorized speaker; and
- Statements made by co-conspirators
When do statements made by employee/agent constitute vicarious admissions?
If the statements were:
- About matter within the scope of employer-employee relationship; and
- Made during the existence of the relationship
When are the statements of co-conspirators considered vicarious admissions?
When the statements were made during and in furtherance of the conspiracy
Name the 3 types of prior statements that are considered nonhearsay. What is required to admit them?
- Prior sworn inconsistent statements;
- Prior consistent statements; and
- Prior statements of identification
In order to be admissible, the declarant must:
- Testify at the present trial; and
- Be subject to cross-examination
⚠️ Be extremely careful about fact patterns with prior statements when the declarant is not available to testify. Unless the declarant is currently testifying, the statements will be inadmissible.
When is a prior inconsistent statement admissible as both substantive evidence AND evidence to impeach?
- The declarant is available to testify and subject to cross-examination; and
- The prior inconsistent statement was a sworn statement under penalty of perjury at a prior trial, hearing, deposition, or other legal proceeding
⚠️ Note: If the statement was not made under oath, it cannot be admitted for substantive evidence. Only for impeachment purposes. This is tricky, so watch out.
When is a prior inconsistent statement only admissible to impeach? (and not as substantive evidence)
If the statement was not made under oath, it will only be allowed to impeach. If the statement was made under oath, it is admissible to impeach and as substantive evidence.
When is a prior consistent statement admissible as nonhearsay?
- Declarant is a currently testifying witness and subject to cross-examination; and either:
- Statement is offered to rebut charge that declarant recently fabricated testimony or was subject to undue influence or motive; or
- Statement is to rehabilitate the declarant's credibility as a witness when attacked on another ground
When is a prior identification admissible as nonhearsay?
Admissible as substantive evidence if:
- Declarant is a currently testifying witness and subject to cross-examination; and
- Witness identified the person prior to trial (e.g. in a lineup)
What is the hearsay exception for present sense impressions?
Statement is admissible if:
- It describes or explains an event; and
- Made during the event or immediately afterwards
Ex. "A red car is driving next to us"
What is the hearsay exception for excited utterances?
Statement is admissible if it:
- Relates to a startling event or condition; and
- Was made while the declarant was under the stress of excitement that it caused
Ex. "Oh my gosh, look, the house across the street is on fire!!"
What is the hearsay exception for a statement concerning a mental, emotional or physical condition?
Admissible if it's a statement about the declarant's then-existing:
- State of mind (such as motive, intent, or plan); or
- Emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)
⚠️ Note: Statements of memory or belief about the events are inadmissible. The statements must be about what the declarant was experiencing at the time it was said.
When is a statement of memory or belief admissible under the then-present mental state exception to hearsay?
When it relates to the validity or terms of the declarant’s will
What is the hearsay exception for statements made for purpose of medical diagnosis or treatment?
Statement is admissible if it:
- Was made to medical personnel (doctors, nurses, anyone involved in treatment);
- Was made for - and is pertinent to - medical diagnosis or treatment (e.g. describes medical history; past or present symptoms or sensations; their inception; or their general cause)
What is the hearsay exception for past recollection recorded?
Recorded recollection is admissible if:
- The record is on a matter that the witness once knew about but cannot recall well enough to testify on;
- The record was made or adopted by the witness when the matter was fresh in the witness’s memory; and
- The record accurately reflects the witness’s knowledge
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
What are the rights of an adverse party when past recollection recorded is used?
- Inspect the writing;
- Cross-examine with it;
- Show it to the jury for comparison; and
- Introduce relevant portions into evidence for its truth
What is the hearsay exception for business records?
A record of an act, event, condition, opinion, or diagnosis is admissible if:
- The record was made in the regular course of business;
- The record was made "at or near the time" of the matter recorded;
- Record was made by an employee of the business with knowledge of the matter recorded
Under the business records exception, is evidence showing an absence of an entry in record admissible?
Yes, omission may be admitted to show the matter did not occur or exist if:
- Records were regularly kept for a matter of that kind; and
- Opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness
What is the hearsay exception for public records and reports?
A record or statement of a public office is admissible if it sets out:
- The office’s activities;
- A matter observed while under a legal duty to report (except in a matter observed by law-enforcement personnel in a criminal case);
- Factual findings from a legally authorized investigation for civil case or against gov. in criminal case; and
- The source of information nor other circumstances indicate a lack of trustworthiness
If a business record quotes someone who doesn't work for the business (i.e. a witness in a police report), is it admissible?
No, this is multiple hearsay. The statement will require another hearsay exception to be admitted.
What is the hearsay exception for records of vital statistics?
Records of a birth, death, or marriage are admissible if reported to a public office in accordance with a legal duty
What is the hearsay exception for learned treatises?
A statement contained in a treatise, periodical, or pamphlet is admissible if:
- Statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
- Publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.