Truth
A witness is on the stand. The party calling the witness asks, “What happened at the Crazy Horse Bar on the night of Saturday, December 28?” The witness relays what she saw at the bar that night.
Not hearsay. The witness’s answer is her in-court testimony.
Defendant is charged with possessing fentanyl. The prosecutor seeks to introduce the gas chromatography machine readout confirming the chemical compound of the substance seized from defendant’s possession.
Not hearsay. The machine’s analysis is not hearsay because it is a machine readout. However, the readout will be admissible only if prosecutor proves that the machine was properly calibrated and properly operated.
Defendant is charged with child molestation. While the child victim was alone in a waiting room with no windows but a closed-circuit camera, the child picked up two nearby dolls and starting placing them into sexually explicit positions.
Not hearsay. Here, the child was not being questioned and his movement of the dolls was not meant to communicate anything, as the child did not know he was being watched.
Defendant is charged with the murder of Deputy Feiff after shooting him during a shoot-out with several assailants. Prosecutor seeks to call Sheriff Griffin to testify that he did not see who shot Feiff, but that he saw Feiff, after he was shot, take special aim at someone down an alleyway and fire two shots off before he collapsed. The person Feiff shot was defendant.
Unclear. If Deputy Feiff was shooting defendant in an attempt to communicate, “This is the guy who shot me,” his conduct would be hearsay. Otherwise, Feiff’s conduct would not be communicative and thus not hearsay.
Defendant is charged with bank fraud. Prosecutor seeks to call one of the officers who searched defendant’s bedroom to testify that utility bills in defendant’s name were commingled with bank statements used to commit the bank fraud.
Not hearsay. Here, prosecutor is seeking to admit the utility bills not for their truth, but to demonstrate defendant’s dominion and control over the area where the fraudulent documents were found, and hence defendant’s knowledge and participation in the bank fraud scheme.
A witness is on the stand. The party calling the witness asks, “What did you tell the cops who responded to the 911 call about what happened inside the bar that night?” The witness recounts her statement to the cops
Hearsay. Even though the witness is testifying, what the witness said to the police on December 28 is her out-of-court statement that qualifies as “hearsay” if offered for its truth.
Plaintiff sues defendant for breach of contract, and, more specifically, for not filling orders plaintiff placed with defendant. Defendant claims that plaintiff never submitted the orders in the first place. To rebut defendant’s defense, plaintiff introduces print-outs from defendant’s database, which were entered into the database by defendant’s employees.
Hearsay. The database is not machine-generated. It is simply a storage mechanism for the items entered into the database by a person, and hence reflects the statements of the input-er.
Defendant is charged with manufacturing methamphetamine. Prosecutor seeks to introduce evidence that a piece of paper containing directions on how to make meth was found in defendant’s bedroom and that was entitled “Meth Making In Three Easy Steps.”
Not hearsay. The directions are not introduced to prove that they are true; the recipe for methamphetamine is not at issue. Instead, the directions are relevant to show defendant possessed what he thought were instructions on how to make methamphetamine, which helps prove his intent to manufacture.
Defendant is charged with murdering his wife and sinking her body to the bottom of a nearby lake. Prosecutor seeks to call the wife’s sister to testify that wife mentioned nothing to the sister about defendant buying a boat. From this, prosecutor seeks to argue that defendant secretly purchased the boat that he later used to take out on the lake to dispose of the wife’s body.
Not hearsay. On these facts, the wife’s silence was not meant to communicate anything. Analytically, there are actually two layers here, too—defendant-husband’s silence to his wife, and the wife’s silence to her sister. Neither level of silence constitutes hearsay.
Plaintiff sues an automaker for damages sustained when his car rolled over. The automaker’s chief engineer is dying from cancer, and the automaker has her execute a sworn affidavit explaining the testing the automaker did under her tenure. The engineer dies before trial, and the automaker seeks to introduce her affidavit.
Hearsay. This is an out-of-court statement admitted for its truth
A witness is on the stand. In response to a question from the party that called her as a witness, the witness testifies that she previously testified at the preliminary hearing in this matter (that is, the proceeding to determine whether there is probable cause to prosecute the defendant). In response to a further question, the witness recounts what she said during her prior testimony.
Hearsay (although, under the federal rules, it may fall into the category of statements that meet the definition of “hearsay” but are nevertheless labeled as “not hearsay” under FRE 804(d)(1)(A)). That is because the witness is relaying her testimony that did not occur “while testifying at the current trial or hearing.” FRE 801(c)(1).
Defendant is charged with transporting narcotics across state lines. Prosecutor seeks to call the arresting officer to testify that his canine, “Sparky,” alerted to the wheel well of defendant’s Gran Torino.
Not hearsay. Sparky is not a person; accordingly, he cannot make a “statement” and thus cannot be a “declarant.” To be admissible, Sparky’s alerting result must be accompanied by a showing that he was properly trained and that his alerts were accurate.
Plaintiff sues defendant for injuries suffered in a car crash. To prove that it was raining at the time of the accident, defendant calls a witness to testify that, from inside a store near the accident site, he saw many passersby opening up umbrellas.
Not hearsay. The people opening umbrellas were not intending to communicate anything.
Defendant is charged with forgery. Prosecutor seeks to call a police officer to testify that, when arrested, defendant refused to provide a handwriting exemplar.
Not hearsay. Defendant’s refusal was not intended by defendant as an assertion. Instead, it is circumstantial evidence of defendant’s state of mind—specifically, his consciousness of guilt (on the theory that he knows that his handwriting exemplars will confirm his guilt).
Defendant is charged with making criminal threats. Prosecutor calls the victim, and he testifies that defendant said, “I’m going to kill you.”
Not hearsay. These are the legally operative facts and/or verbal acts that constitute the crime of criminal threats.
A witness is on the stand for the prosecution. On cross-examination, defendant elicits that the witness was arrested, convicted of commercial burglary, and placed on probation in the six months prior to the trial. On re-direct, prosecutor asks the witness to recount what she told the police at the time of the charged crime at issue in this case, which was more than a year before the trial.
Not hearsay, potentially. To the extent that prosecutor is seeking to have the witness recount what she said to the cop in order to show that her story has been consistent from the very beginning—and thus, that her recent troubles have not caused her to shade her story to be more favorable to the prosecutors—the statement is being admitted to rehabilitate the witness’s credibility, and not for its truth. Unless the trial judge concludes that the danger that the jury would consider the statement for its truth was too great and thus to exclude the statement under FRE 403, the trial judge would likely give a limiting instruction telling the jury to consider the prior statement only for its bearing on the witness’s credibility—and not for its truth.
Defendant is charged with grand theft of a Segue. Prosecutor calls one of defendant’s neighborhood friends, who testifies that weeks before the theft, the friend asked defendant why he was still riding around on a beat-up Huffy bicycle, and defendant responded by rubbing his fingers against his other fingers—a gesture that the witness recognized as meaning, “I had no money.”
Hearsay (although, in under the federal rules, it falls into the category of being “not hearsay”). Defendant’s gesture was meant to communicate that he had no money, and was accordingly a statement. However, it is being offered by prosecutor against defendant, such that it is considered “not hearsay” under FRE 801(d)(2).
A ship’s owner sues the insurance company after it sank at sea. To prove that the ship was seaworthy (which is a necessary prerequisite to insurance coverage), the owner seeks to call a dockworker who said that she watched the ship’s captain do a full inspection of the ship before she, her husband, and their two small children boarded the ship and set sail.
Not hearsay. The ship’s captain was not trying to communicate anything by his act of inspection; without knowing that anyone was watching him, his conduct was not an implied assertion.
Defendant is charged with a DUI. Prosecutor seeks to call the arresting officer to testify that, when the officer approached her on the roadside, defendant—in a slurred voice— stated, “I’m not as think as you drunk I am.”
Not hearsay. Neither defendant’s manner of speaking nor his transposed words are being admitted for their truth. What is relevant is not the truth of defendant’s words, but that his speech is that of an intoxicated person.
Plaintiff sues defendant for breach of oral contract. Plaintiff testifies that defendant once said, “I’ll sell you my prize horse for $15,000.”
Not hearsay. This is an offer to enter into a contract, and is a verbal act/legally operative fact regardless whether it is true.
Defendant is charged with reckless driving. Prosecutor seeks to introduce the reading from the radar gun that clocked defendant at traveling 93 mph.
Not hearsay. This is not the statement of a “declarant”; instead, it is readout from a machine. To admit this evidence, prosecutor will need to establish that the radar gun was properly calibrated and used properly by the officer who took the reading (which is covered by the rules governing authentication discussed in Chapter Thirteen).
Defendant is charged with child molestation. Prosecutor seeks to call an expert to testify that, when he asked the four-year-old victim to show him what defendant did with him and handed him two dolls (one “adult sized” and one “child sized”), the victim responded by moving the dolls in a particular way.
Hearsay. The child-victim’s movement of the dolls was meant to communicate an answer to how the child had been touched by defendant.
An environmental group sues a government agency for allowing chemical contamination of a large park. The agency seeks to introduce evidence that the agency’s head, after the lawsuit was filed, took his family to the area and toured it.
Hearsay. Here, the agency head’s conduct in taking his family to the allegedly contaminated area was intended to communicate that the area is safe for families.
Defendant is charged with running a gambling house. Prosecutor seeks to call a police officer who executed a search at defendant’s house to testify that, while he was at the house, the phone rang and when the officer picked up the phone, the person on the other end of the line stated, “I want a cool thou on No Regrets in the fifth.”
Not hearsay, federally. Prosecutor is not seeking to admit the statement for its truth—that is, to prove that the caller wanted to place a $1,000 bet on a horse called No Regrets in the fifth race. Instead, prosecutor is seeking to admit the statement of its implied assertion that the place being called is a gambling house that takes bets. Under the federal rules, this is not hearsay. The rule in several state courts may be different. In California, for instance, the appellate courts are split over whether implied assertions constitute “hearsay.” Compare People v. Morgan, 125 Cal.App.4th 935, 943-46 (2005) (implied assertions are hearsay); People v. Garcia, 168 Cal.App.4th 261, 289 (2008) (same) with People v. Nealy, 228 Cal.App.3d 447, 452 (1991) (implied assertions are not hearsay); People v. Ventura, 1 Cal.App.4th 1517, 1517-1519 (1991) and with People v. Allen, 65 Cal.App.3d 426, 434 (1976) (implied assertions are hearsay when the implied statement is intended by the declarant).
Defendant is charged with prostitution. Prosecutor seeks to call the arresting officer to testify that, when he approached defendant, she said, “Hey, Big Boy. It’s $50 or $100, depending on what you want.”
Not hearsay. Defendant’s words are the acts soliciting prostitution, and thus are verbal acts/legally operative facts.