#20406 - Evidence Outline Hearsay - Evidence Outline: Hearsay

Hearsay is defined as an out of court statement offered to prove the truth of an assertion made in the statement

1. By “out of court” we mean a statement not made on the witness stand in the current trial or hearing.

   1. Out of court statements include those the witness themselves have made on other occasions.

There are 3 main components to the common definition of hearsay. Hearsay is:

1. An out of court

   1. The individual or entity who made the out of court statement is called the declarant.

   2. The declarant must make the statement outside the current trial or proceeding.

   3. Therefore, most technically, hearsay is not just an out of court statement, but an out of the present court statement.

2. Statement (or nonverbal assertive conduct)

   1. Includes oral or written statements, as well as nonverbal conduct that the actor intended to serve as an assertion.

3. Offered for the truth of the matter asserted

   1. To constitute hearsay, an out of court statement must be offered for the truth of the matter asserted.

   2. Thus, one cannot know if there is a hearsay issue or not without also analyzing the purpose for which the offering party seeks to introduce the out of court statement.

   3. A statement is offered for the truth of the matter asserted if there is a match between the reason the offering party/proponent introduced the statement and the assertion in the statement itself.

      1. E.g.: If a witness testifies that the declarant said, “The light was red when the defendant drove through it,” and the proponent is using the statement to prove that the light was red when the defendant drove through it, then the statement is being offered for the truth of the matter asserted.

Hearsay is an out of court statement offered by a litigant to prove the truth of what the declarant asserted.

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

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

1. (1) the declarant does not make while testifying at the current trial or hearing; and

2. (2) a party offers evidence to prove the truth of the matter asserted in the statement.

The term witness is used to refer to the person on the witness stand at the trial.

Declarant is used to refer to the person who made the out of court statement.

Assertion means a statement or conduct that is intended to communicate a fact — essentially, something the declarant meant to assert as true

1. E.g:

   1. If a person points at someone and says, “He’s the thief!”, that’s an assertion (because it’s meant to state a fact), but

   2. If someone screams and runs away from a person without intending to communicate anything, that conduct is not an assertion and therefore not hearsay.

When the witness testifies about something the declarant said or did it will be hearsay if:

1. The declarant intended to make an assertion, and

2. The party offering the evidence is doing so in order to prove the truth of the assertion

Follow these steps in this order to determine whether an out of court statement is hearsay:

1. Step 1: Identify the words or conduct in question

2. Step 2: Identify the declarant

3. Step 3: Determine whether the declarant intended to make an assertion

4. Step 4: If there is an assertion, determine whether the party is offering the evidence to establish the truth of the assertion, or for a different reason.

Test:

1. Determining whether any out of court statement is hearsay (Rule 801(c)):

   1. Is the party offering the statement to prove (the truth of) what it says or was meant to say? AND

   2. Did the declarant assert–that is, did she mean to communicate–that fact?

2. Unless the answer to both questions is yes, the statement is NOT HEARSAY.

An oral or written assertion is simply a declaration or allegation of a fact or opinion.

The assertion need not be expressed in a declarative sentence; it may be made or implied in a question or an exclamation as well.

E.g:

1. “There is a pothole in front of you.”

2. “Do you see the pothole in front of you?”

3. “Look out for the pothole in front of you!”

   1. Both the question and the exclamation imply the existence of the pothole and thus are assertive.

Nonverbal Conduct

1. To make a statement, one does not need words. Nonverbal conduct is a “statement” if the declarant intends for his conduct to be assertive.

   1. For example, a nod of the head, a wink, any other physical conduct, or a gesture may be intended to convey an assertion.

   2. The issue with respect to nonverbal conduct is whether the declarant has taken an action for its own sake, that is, to accomplish some purpose inherent in the act, or whether he has taken the action to communicate an assertion.

      1. E.g:

         1. If a person points toward a suspect when police ask “Who shot him?”, that gesture is intended to communicate information — it’s an assertive, hearsay statement because the act itself conveys, “That’s the shooter.”

         2. But if a person runs away from a burning building, that conduct is nonassertive — they’re acting for safety, not to communicate that the building is on fire. In that case, it’s not hearsay, because the action wasn’t meant as an assertion.

Implied:

1. These are statements where the speaker does not expressly assert a statement (i.e. “There is a stop sign ahead,” or “Sara deals drugs.”)

2. However, the speaker intends to communicate those facts by implication.

   1. These statements, if offered to prove the truth of the implied assertions, are therefore hearsay.

3. Therefore, an implied assertion is a statement or conduct that implies a fact even though it doesn’t directly state it, and the speaker intends to communicate that implication.

4. Both express and implied assertions are intentionally communicative and therefore hearsay if offered to prove what they communicate.

5. Examples:

   1. A person says, “Can you get me some of the usual?” to someone known to sell drugs implies the speaker buys drugs from that person, even though they didn’t say so directly.

   2. A person says, “I saw John’s car parked outside the bank right before the robbery.” implies John might have been involved in the robbery, even though it’s not explicitly stated.

Indirect

1. An indirect assertion is an out-of-court statement offered to prove the truth of the matter asserted, but the statement itself is not a direct claim; instead, it contains an embedded, implied, or logical assertion.

   1. It may be a link in a chain of inferences.

2. As always, if it is used to prove the truth of a statement, it is hearsay.

3. Therefore, an indirect assertion is a statement that asserts a fact indirectly because it depends on an unstated assumption or logical inference, but the declarant isn’t necessarily intending to assert that fact.

   1. The fact is inferred from the statement, but the speaker did not intend to assert it.

4. Examples:

   1. A caller asks, “Is the boss in today?” indirectly asserts that the boss works there, even if the caller didn’t intend to make that claim.

   2. A person says, “I need to borrow your shovel again,” indirectly asserts they borrowed it before, even if that’s not their intended message.

Key Difference:

1. Implied assertions = speaker intends to communicate the hidden fact.

2. Indirect assertions = the fact is inferred from the statement, but the speaker did not intend to assert it.

Was the act or statement intended to communicate a fact or belief?

1. If yes, it’s an assertion (and may be hearsay if offered for its truth).

2. If no, it’s nonassertive conduct (and not hearsay).

The key question/consideration:

1. Was the declarant trying to tell someone something by the words or conduct?

If a statement or act does not assert a fact, it can’t be hearsay — because there’s no “truth” to be proved.

Non-assertive examples:

1. Questions: “Where is my phone?” not asserting a fact.

2. Commands: “Leave now!” not asserting; it’s directing action.

3. Threats: “I’ll kill you.” not asserting; it’s an act, not a factual claim.

4. Promises or offers: “I’ll pay you $10.” creates legal obligations but doesn’t assert truth.

5. Exclamations: “Ouch!” or “Wow!” express emotion, not factual assertions.

The above are not hearsay because they’re not asserting a fact to be true or false.

This is hearsay and is barred by Rule 801.

Example:

1. A witness testified that Sarah said, “Tom was driving 90 miles per hour.”

   1. If this statement is offered to prove Tom was actually speeding, this is hearsay because it’s used for the truth of what Sarah asserted.

This is not hearsay because this purpose applies if testimony of an out of court statement is offered to show that the person who is testifying, no matter if it is the declarant or the defendant, heard it and had reasonable belief that the defendant was acting in response to the statement.

Example:

1. Sean told Tara, “The bridge ahead is out!”

   1. If offered to show why Tara stopped the car (i.e., the statement’s effect on her), not to prove the bridge was really out, it’s not hearsay.

2. In this instance, Sean is the declarant and is the one testifying. This evidence must be offered to show that Tara, the defendant, heard this statement (outside of...