A Blueprint for Analyzing Hearsay

Students struggle with hearsay. Frankly, it's really difficult. But it's a lot easier if you approach it systematically and you approach it that way every time you're asked to analyze it. By going through the steps, you've got a great chance of correctly determining whether evidence should be excluded because it's hearsay or whether it should potentially be admitted because it's not hearsay or because it's hearsay but an exception. 

Begin with step one. First ask if the evidence is an out of court statement. This might seem like a straight-forward inquiry but it's important to remember that a statement can be oral/written and it can also be conduct intended to be a substitute for words (for example a nod of the head). If there's no statement then there's no hearsay. 

Let's assume there's a statement. Next, ask if the statement is offered to prove the truth of the matter asserted. This is perhaps the most difficult step in the analysis. One way to make it easier is to remember the limited situations in which statements are not offered for the truth. Statements are not offered for the truth of the matter asserted if they are instead offered as verbal acts and legally operative facts (for example, words that are offered merely to show that an offer was made or that the statement constitutes defamation). In addition, statements are not offered for the truth of the matter asserted if they are offered to show the effect on the listener (for example, to prove the element of notice in a negligence case) or if the statements are offered to show what the declarant believed to be true (rather than to prove that the words themselves are in fact true). If a statement is not offered for the truth of the matter asserted then the statement is not hearsay.

Let's assume we have a statement offered for the truth of the matter asserted. Next, determine whether any exemptions apply. The exemptions are the following: (1) prior inconsistent statements given by the declarant under penalty of perjury and prior consistent statements offered to rebut a charge that the witness is lying or exaggerating or offered to rehabilitate a witness who has been impeached on other grounds; (2) statements of identification of a person as someone the witness earlier perceived; and (3) statements made or adopted by a party to the action or by a spokesperson authorized to speak for that party, statements made by the party's agent concerning a matter within the scope of the agency, statements made by the party's partner about a matter within the scope of the partnership business, or statements made by a co-conspirator of the party about a matter in furtherance of the conspiracy.

Let's assume that none of the above 3 exemptions above. Next is to ask whether any exceptions apply. The exceptions are beyond the scope of this post but there are many of them. If any of those exceptions apply, then the statement is hearsay but it's admissible due to the exception. It's important to understand this point: when an exemption applies, the statement is not hearsay; when an exception applies, the statement is hearsay but it's admissible nonetheless. 

If no exception applies, then the statement is inadmissible hearsay.