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EPISODE SUMMARY
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. A statement may be an oral assertion, written assertion, or nonverbal conduct intended as an assertion. The declarant is the person who made the statement.
The hearsay analysis asks three questions: Was there a statement? Was it made outside the current trial or hearing? Is it offered for the truth of what it asserts? If yes, the statement is hearsay unless an exclusion or exception applies.
Many out-of-court statements are not hearsay because they are offered for nontruth purposes. Common nonhearsay uses include effect on the listener, notice, motive, fear, legally operative words, verbal acts, state of mind, impeachment, and circumstantial evidence of knowledge or belief.
Certain prior statements by testifying witnesses are excluded from hearsay when the declarant testifies and is subject to cross-examination. These include qualifying prior inconsistent statements, prior consistent statements used under specified conditions, and prior identifications.
Opposing-party statements are also excluded from hearsay. They include a party’s own statements, adoptive statements, authorized statements, agent or employee statements concerning matters within the scope of the relationship and made during it, and co-conspirator statements made during and in furtherance of the conspiracy.
Adoptive statements may arise through words, conduct, or silence, but silence is difficult because circumstances must make denial expected and silence meaningful. Agent and employee statements require scope and timing. Co-conspirator statements require a conspiracy, membership by both declarant and party, and a statement during and in furtherance of the conspiracy.
Hearsay within hearsay requires separate analysis for each layer. Every assertion must have a nonhearsay purpose, exclusion, or exception.
The central lesson is that hearsay is not “something someone said.” Hearsay is an out-of-court assertion offered for its truth. Purpose controls the rule.
