Sunday, April 22, 2012

Hearsay vs Non-Hearsay

When dealing with a hearsay question (and on the MBE, there will be many), avoid the trap of jumping right into the exceptions. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Your first step when analyzing a potential hearsay issue is to determine whether the statement was offered into evidence for the truth of the matter asserted. Look for the following commonly tested non-hearsay statements:

(1): Operative facts, where the words themselves have legal significance: For example, in a defamation case, plaintiff can offer a statement by defendant that plaintiff is a thief. Plaintiff is not offering the statement to prove that he is, in fact, a thief, but, rather, as evidence of slander. As such, the statement is not being offered to prove the truth of the matter asserted (that plaintiff is a thief), and the statement is therefore non-hearsay.

(2): Verbal acts that tend to show notice: For example, if evidence is offered that a store employee was told by a customer to "please clean up the wet floor in aisle 5 before someone slips" that statement by the customer is admissible to prove that the employee was put on notice of the wet floor, if a customer is injured, and sues for negligence, after slipping on the wet floor.

(3): Statements offered to prove an attitude, belief, or intent: For example, if defendant offers evidence of a statement made by plaintiff threatening to attack defendant, this statement is admissible in a claim by defendant of self defense. Just as in the two examples above, defendant is not offering the statement to prove the truth of whatever was said to defendant, but rather to prove that defendant believed he would be attacked, and therefore was reasonable in defending himself against the attack.

One commonality among all the examples above is to ask why the evidence is being offered. In fact, learning to ask why the evidence is being offered will take you very far in understanding many aspects of evidence (character evidence, etc), but is especially important when analyzing hearsay.

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