This post is not meant to be a crash course in Evidence Law but a guide to issues you should consider when given a hearsay question. Hearsay is an important part of Evidence law. Here is a link to the Federal Rules of Evidence (the "Rules"), which will govern most of your Evidence course: https://www.law.cornell.edu/rules/fre
Hearsay can be found in Article 8 of the Rules. As defined in Rule 801(c), hearsay is an out of court statement offered to prove the truth of the matter asserted in that statement. To clear up some hearsay-related vocabulary, the declarant is the person who made the out of court statement (801(b)) and the witness is the person on the stand in the current trial testifying about the declarant’s statement. The declarant and witness could be the same person (think Rule 801(d)(1)).
For example, if at trial, the prosecution asks Mary who shoplifted an iPad from Best Buy and Mary testifies, “Sue told me the iPad was stolen and Terry did it,” the defense would have grounds for a hearsay objection. Hearsay is generally inadmissible because the declarant (here, Sue) is not subject to cross-examination and therefore the parties cannot probe into the validity of Sue's statement. At first glance, hearsay may seem straightforward but is actually laden with traps. Below is a checklist of issues you should consider on a hearsay question on an exam:
1. Was there a statement? Hearsay includes not only verbal statements but also gestures (nodding, thumbs up, etc.) and writing (letter, texts, etc.). Using the example above, if Mary had asked Sue, “Hey, did Terry steal the iPad?” and Sue nodded, the nod would also be hearsay if the prosecution tried to use it at trial even though Sue did not actually say anything. It is sufficient that Sue intended to convey a response by nodding (801(a)). Additionally, the statement must come from a human, there is no such thing as animal or machine hearsay. Therefore, a time stamp on an email is not hearsay and admissible unless excluded on other grounds.
2. The statement needs to be offered to prove the truth of the matter asserted. You need to ask yourself: why is a party trying to introduce the out of court statement into evidence? Say Dan testifies that Katie told him she was a chicken two weeks ago while out at dinner. If this statement is to be used to prove that Katie is in fact a chicken, it is barred under the hearsay rule (802). However, this statement could be admissible to show that Katie has lost her marbles. This is because the statement is conveying Katie’s mental state and not being used “to prove the truth of the matter asserted” (i.e. not trying to prove that Katie is a chicken, just her state of mind). Other potentially admissible uses of out of court statements are the demonstration of the effect on the listener (such statements often provide notice in a negligence case), impeachment of the witness and words of independent legal significance (if a defendant is being sued for defamation, the court needs to know exactly what the defendant said about the plaintiff).
3. Is the statement admissible under Rule 801(d)? A declarant-witness’s prior statement (801(d)(1)) and an opposing party’s statement (801(d)(2)) are not hearsay and therefore are admissible to prove the truth of the matter asserted. 801(d) is tough because these statements otherwise look like hearsay. However, such statements are not hearsay simply because the Rules say they are not, just go with it. It could be helpful to think of 801(d)(1) & (2) as "exemptions" to the hearsay rule. Remember that the exemptions covered by 801(d)(1) & (2) are distinct from the exceptions described below and in Rules 803 and 804.
4. Does an exception to the hearsay rule apply? Assuming the statement constitutes hearsay under 801(c) and is not otherwise admissible under 801(d), you need to examine whether any exceptions would allow it in. To collect the maximum number of points, if you think something could be admissible both as an exemption (801(d)(1)/(2)) and an exception (803/804), you should analyze both scenarios. To be clear, the out of court statements addressed by 801(d)(1) & (2) satisfy the requirements of hearsay but are admissible because the Rules say that they are not hearsay. On the other hand, if a statement falls under a hearsay exception, it is still legally hearsay but nevertheless admissible because it meets the requirements spelled out in Rules 803 and/or 804. It is useful to divide these exceptions into two categories. First, the exceptions under 803 that do not require unavailability (excited utterances, present sense impression, medical diagnosis, etc.) and second, the exceptions under 804 requiring the declarant’s unavailability (former testimony, statement against interest, dying declaration, etc.)
5. Does the residual catch-all apply? See Rule 807
6. Are there any constitutional issues that could keep an otherwise admissible statement out? (i.e. was the statement testimonial?)
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