Hearsay Overview and Rules

Hearsay: Meaning and Definition

Introduction

  • The video provides a broad overview of hearsay, breaking it down into manageable segments.
  • Recommendation to download a cheat sheet with 21 common trial objections.

Rule 801: Definition of Hearsay

  • Hearsay is defined as a statement that:
    • The declarant does not make while testifying at the current trial or hearing.
    • A party offers in evidence to prove the truth of the matter asserted in the statement.
  • The definition includes key elements:
    • Statement.
    • Declarant.
    • Truth of the matter asserted.
Statement
  • A statement can be:
    • Oral assertion.
    • Written assertion.
    • Nonverbal conduct intended as an assertion.
  • Example of nonverbal conduct: clicking the like button as a statement of enjoyment.
Declarant
  • A declarant is the person who made the statement.
  • A declarant isn't necessarily the same as a witness.
  • A declarant typically makes the statement outside of the courtroom.
  • A witness can also be a declarant if quoting their own out-of-court statement.
Truth of the Matter Asserted
  • The truth of the matter asserted means offering a statement to prove the substance of that statement.
  • Example: If Bob says, "Today is Cinco de Mayo," and it is offered to prove that it was Cinco de Mayo, that is the truth of the matter asserted.
  • If the statement is offered merely to show a conversation occurred, it's not offered for the truth of the matter asserted, and it may be non-hearsay.

801(d): Non-Hearsay

  • Non-hearsay is not the same as a hearsay exception.
  • Non-hearsay was never hearsay to begin with.
  • Important to make this distinction clear to the judge.

Rule 802: Admissibility of Hearsay

  • Hearsay is not admissible unless provided otherwise by:
    • Federal statute.
    • Federal Rules of Evidence.
    • Rules prescribed by the Supreme Court.

Purpose Behind the Rule Against Hearsay

  • The rule is in place so that cross-examination can be effective.
Cross-Examination
  • The purpose of cross-examination is to test the credibility of witnesses and the opposing side's position.
  • Hearsay complicates this because the declarant isn't present for cross-examination.
  • The opposing side can't test what the declarant said or their credibility.

Rule 803 and 804: Hearsay Exceptions

  • These rules provide exceptions under which hearsay may be admissible.
  • Rule 803 applies in all cases.
  • Rule 804 applies when the declarant is unavailable.
Underlying Principle of Hearsay Exceptions
  • Hearsay exceptions assume the statements made are true under certain circumstances.
  • Example: Excited Utterance
    • A statement made during a shocking event is considered truthful because the declarant doesn't have time to formulate it strategically.

Rule 403: Exclusion of Relevant Evidence

  • Even if a statement is non-hearsay or satisfies a hearsay exception, it must still satisfy Rule 403 to be admitted.
  • Rule 403 allows for the exclusion of evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 805: Hearsay Within Hearsay

  • Deals with multi-layered hearsay.
  • Each level of hearsay must meet an exception.
  • Example: A document containing a quoted statement from another person.
  • Each level of hearsay must meet an exception and satisfy Rule 403.

Rule 806: Attacking and Supporting Declarant's Credibility

  • Allows for the attacking or supporting the credibility of a declarant who is not a witness.

Rule 807: Residual Exception

  • Serves as a catch-all provision for hearsay exceptions.
  • Requires satisfying specific elements and a notice requirement.