The Truth of the Matter Asserted

Trying to determine if a statement is being offered for the "truth of the matter asserted" is difficult, especially under the pressures of the MBE. It's important to ask yourself whether the truth of what the statement is asserting is relevant to the particular case. If not, then it's likely being offered for some purpose other than the truth of the statement itself, in which case, hearsay is not an issue. Below is an example to illustrate this principle, and feel free to leave comments for further clarification:


Think of a situation in which a witness wants to offer that a manager of a supermarket was told that there was a banana peel on the floor of the supermarket, 20 minutes before a customer slipped on the peel. In other words, the witness wants to offer an out-of-court statement and the statement consists of the words "there is a banana peel on the floor in aisle 3." You'll want to determine why the statement is being offered. The statement is being offered not to prove that the peel was on the ground (that is not an issue in the case as both parties will likely admit to that fact, assuming there was a peel) but rather it's being offered to prove that the manager was put on notice that the peel was on the ground. Whether the manager was put on notice is relevant to whether the manager (and therefore, the store) will be liable for the injuries of the person who slipped, because if the manager had notice, and allowed the peel to remain, he may well have breached his duty of care (negligence).

And because the statement was offered to prove notice, and not offered to prove that there was a peel on the ground (which is what the person actually said in the statement) the statement is not being offered to prove the truth of the matter asserted (that there was a peel on the ground.)

And then, finally, because the statement is not being offered to prove the truth of the matter asserted, assuming no other rule of Evidence keeps the statement out, it will be admitted notwithstanding the rule against hearsay.