Believe it or not, the meaning of hearsay isn't to confuse you.
Hearsay actually serves a very legitimate purpose.
To fully appreciate and understand hearsay's meaning under the rules of evidence, then be sure to watch the above video.
As I mention in the video, this post is going to be a general overview of hearsay evidence. That way you can see the big picture before we starting getting into the weeds of hearsay.
Let's get started!
Simplifying the hearsay definition with FRE 801(c).
With Federal Rules of Evidence - Rule 801, we can see several critical hearsay definitions.
Let's first look at FRE 801(c):
"Hearsay" means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
- FRE 801(c) -
Yup... there's a lot going on. If your mind is already melted, then don't worry because that's normal.
Notice that I bolded some key phrases in the hearsay definition.
So let's now unpack those one by one.
Statement definition in FRE 801(a).
"Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
- FRE 801(a) -
This definition tells us that a statement can potentially be hearsay if the statement is intended to be an assertion.
Therefore, if a person says something, writes something, or physically indicates something... AND intends to make an assertion, then that person has made a "statement" under FRE 801(a).
Keep in mind, we still don't know if the statement is hearsay because we then have to determine (1) whether the statement was made by a declarant; and (2) whether the statement is being offered to prove the truth of the matter asserted.
Let's move on!
Declarant definition in FRE 801(b).
“Declarant" means the person who made the statement.
- FRE 801(b) -
I always associate "declarant" with Michael Scott (anyone else think of this episode of The Office or is that just me?). So I'll be using him with my hearsay examples.
The important distinction to make with declarant is that hearsay involves out-of-court statements made by a declarant... who is out of court (obviously...).
So when it comes to hearsay, a declarant and a witness is not always the same person.
For example, if Dwight Schrute is on the witness stand and testifies that Michael Scott said "there was a murder in the Office" (pun intended...), then Dwight is your witness (in-court statement) and Michael is your declarant (out-of-court statement).
Now let's say that Dwight is on the witness stand and testifies that he told Michael "there has been a murder." In other words, Dwight is quoting himself while he testifies. Accordingly, he is the witness AND is the declarant once he quotes his out-of-court statement.
Spoiler alert: quoting yourself can also raise a hearsay objection.
"The truth of the matter asserted."
There's no denying that this is a super awkward phrase.
In normal English, "the truth of the matter asserted" means that you're using that statement to prove the substance of the statement itself.
Hopefully this hearsay example makes it clear.
Dwight is on the witness stand and testifies to Michael Scott saying, "there has been a murder."
Is there a statement? Yes.
Is there a declarant? Yes.
Is the statement being offered to prove the truth of the matter asserted? Maybe.
If Dwight is using Michael's statement to prove that there was a murder, then that means that Dwight is using "there has been a murder" to prove the substance of the statement.
On the other hand, if Dwight is using "there has been a murder" to simply prove that Michael was at work that day and spoke to Dwight, then Dwight is not trying to use the statement to prove there was a murder. Therefore, he's not offering it for the truth of the matter asserted.
Summary of the hearsay definition.
In short, if there is an out-of-court statement made by a declarant that is trying to be brought into evidence and the statement is being used to prove the substance of the statement, then it may be hearsay.
Notice the "may."
Nonhearsay and FRE 801(d).
The Federal Rules of Evidence can keep you on your toes and FRE 801 is no exception.
So be sure to note that FRE 801(d) describes statements that would qualify as nonhearsay, which means that those particular statements were never hearsay to begin with.
THIS IS A SUPER IMPORTANT DISTINCTION.
Nonhearsay is not the same as a hearsay exception.
With nonhearsay, the out-of-court statement was never hearsay to begin with under FRE 801(d).
But with a hearsay exception, it was hearsay and an exception had to apply in order for the hearsay evidence to be admissible.
Therefore, it is much easier to get statements admitted into evidence if they were never hearsay to begin with.
In other words, be sure to determine whether a certain statement qualifies as nonhearsay or hearsay before making an argument to the judge.
Let's keep going...
10-Step Formula to the Perfect Opening Statement
Enter your email below to get your FREE copy sent directly to you!
The Rule Against Hearsay - FRE 802.
So why are we talking about hearsay to begin with?
Well as you can probably tell, hearsay is inadmissible evidence according to FRE 802.
But, be sure to note that FRE 802 allows for hearsay exceptions if prescribed by the federal rules of evidence, federal statute, or by the Supreme Court of the United States.
Hearsay meaning and purpose.
Unfortunately, FRE 802 doesn't really explain why hearsay evidence is inadmissible (subject to exceptions).
And if you can understand the purpose and meaning behind hearsay, then hearsay as a whole will make much more sense.
So let's start by talking about the purpose of cross examination, which is to stress test the other side's arguments, witnesses, and credibility. A successful cross examination can poke holes in the other side's story and win you the case (just be sure not to make this mistake).
But, a problem occurs if the witness starts quoting a declarant and tries to prove the case with out-of-court statements. If the witness can use hearsay to prove the other side's case, then you would have no way to try to poke holes in the declarant's statements because the declarant is not on the witness stand and not subject to cross examination.
Allowing all hearsay would render most of cross examination useless.
So while hearsay may be complicated, it serves a genuine purpose -- to ensure that facts can be scrutinized so that the jury can see the truth.
At the same time, not all hearsay is bad hearsay.
Hearsay Exceptions -- FRE 803 and FRE 804.
Here's where we are at. An out-of-court statement is most likely going to be nonhearsay or hearsay.
And if it's hearsay, then you need to determine whether an exception applies.
To do that, you'll want to get real comfortable with Rule 803 and Rule 804 because these are the exceptions to hearsay.
Since this is an overview, I won't spend time going through each hearsay exception (there are a lot of them!). Just be sure to note that FRE 803 is going to apply under all circumstances and FRE 804 may end up applying if the declarant is unavailable.
It's worth pointing out the meaning behind these hearsay exceptions, which is that the exceptions apply because the rules of evidence assume the statements are valid.
In other words, the rules of evidence have carved out hearsay exceptions because a hearsay statement can potentially be made under credible circumstances.
As we talked about earlier, there is a serious need to keep hearsay statements out of evidence because a declarant could strategically make an out-of-court statement (that may not be truthful) so that their friend, family, or whoever wins the case. And the other side would have no way to cross examine the declarant and poke holes in the statement.
But, there are times when hearsay statements are made under circumstances that make the statements genuine.
For example, with excited utterance, there is an assumption of validity when someone who makes a statement in a split second after something exciting happened. With this exception, there wasn't enough time for the declarant to strategically make a statement for trial because the statement was essentially an immediate reaction to something. As such, the statement is most likely a valid one that doesn't need to be stressed test with cross examination.
FRE 805 - Hearsay within Hearsay.
FRE 805 mentions that you can have hearsay within hearsay.
In fact, you can theoretically have an infinite amount of hearsay if someone is quoting someone quoting someone... and so on (hence the Inception meme above).
Here's a real life example that I pulled from a crash report:
There are a lot of potential "hearsay within hearsay" instances with this example. But, let's just focus on one of them.
Notice the portion that says "I then spoke to the driver of Unit 1 who stated that he was in the shoulder to make a U-turn."
By the way, Unit 1 is the defendant in the case.
Anyways, this portion of the crash report is a perfect example of potential hearsay within hearsay that would trigger Rule 805.
The first level of potential hearsay is the report itself made by the police officer. Therefore, if this report qualifies as hearsay and an exception doesn't apply, then you will not even have the opportunity to try to introduce the defendant's statements.
But, for the sake of this example, let's say that a hearsay exception applies.
In that case, you then need to determine how you are going to get in the defendant's statement that "he was in the shoulder to make a U-turn."
Fortunately, this statement by the defendant would qualify as party opponent, which is nonhearsay under FRE 801(d)(2)... which was never hearsay in the first place... which means that this entire example was actually nonhearsay within hearsay.
Again for the sake of this example, if the statement was made by the witness (not the defendant), then you may need to find an exception because that would then be hearsay within hearsay.
In short, if you are trying to introduce an out-of-court statement into evidence and there are layers of potential hearsay on top of it, then you need to start with the top layer and start digging your way down with exceptions or nonhearsay.
FRE 806 - Attacking and Supporting the Declarant.
This rule is pretty straightforward. It allows for you to attack the declarant's credibility and gives you some wide latitude to do that. After you attack the declarant's credibility, then that opens the door for the other side to offer proof that supports the declarant's credibility.
FRE 807 - Residual Exception
This the hail mary exception and is basically going to be your last chance to get a hearsay statement admitted into evidence. Be sure to note that you have to satisfy all of the elements of Rule 807.
Hearsay doesn't have to be super confusing. As long as you prepare in advance of trial to argue whether a statement is nonhearsay or an exception applies, then you'll be miles ahead of most lawyers.
*Don't forget* Be sure to subscribe to the YouTube channel and let me know your thoughts!
TRIAL AD ACADEMY: COURTROOM MASTERY