Hearsay and Non-Hearsay

Oral or written assertion
non-verbal conduct intended by a person as an assertion

Out of Court Person
No Machines
No Animals

Out of court statement offered to prove the truth of the matter asserted

(1) Analyze the statement
(2) Determine who is the declarant
(3) Determine the purpose for which the statement is being offered (if it is not being offered to prove the truth of the matter asserted, it is nonhearsay)
(4) Apply the hearsay exceptions

(1) Prior Inconsistent Statements
(2) Prior Consistent Statements
(3) Prior Identifications
(4) Admissions (Direct, by Conduct or Silence, Representative Admission either Authorized or Vicarious, Co-conspirator)
(5) Verbal Acts
(6) Non-Assertive Conduct
(7) State of Mind

Non-hearsay

Declarant must be available and subject to cross-examination regarding the statement

If the prior statement is SWORN (subject to penalty of perjury at a trial, hearing or proceeding), it is admissible substantively and to impeach.

If the prior statement is NOT sworn, it is only admissible to impeach.

This is considered a sworn statement.

A prior inconsistent statement made during a deposition may be entered into evidence for the substance of the statement and to impeach the D.

This is NOT considered a sworn statement because it is not made during a proceeding.

A prior inconsistent statement made during an affidavit may only be entered into evidence to impeach. It may NOT be entered into evidence for the substance of the statement.

Non-hearsay

Declarant must be available and subject to cross-examination regarding the statement.

Nonhearsay statement / offered to rebut / a charge / of recent fabrication or improper influence.

Non-hearsay

Declarant must be available and subject to cross-examination regarding the statement.

Prior statement / of an identification / of a person / after perceiving him

Admitted substantively

Non-hearsay

Statement / by a party / offered against him / by his opponent

Non-hearsay

Evidence / of conduct / of a party / which reasonably / supports an inference / inconsistent with the party's position

Circumstances must be such that a reasonable person would have denied the statement

Admitted substantively - comes in as proof

Non-hearsay

Authorized Admission

Vicarious Admission

Non-hearsay

Statement / of any person / specifically authorized / by a party / to speak

Non-hearsay

Statement / of an agent or employee / made during the existence of the relationship / and concerning a matter within the scope of employment

Common law rule: statement had to relate to employment duties