Declarant
Defendant is charged with murder. He asserts self-defense. Defendant testifies that, the night before the killing at issue, he heard the victim bragging about killing another man.
It depends. To the extent the victim’s prior statement is admitted to show defendant’s knowledge of the victim’s dangerousness (and thus the subjective reasonableness of defendant’s belief in the need to use deadly force to protect himself), it is admitted for its effect on the hearer and not its truth. For this purpose, it does not matter whether what the victim said was true; it was enough that it was said. But to the extent the victim’s prior statement is admitted to show that the victim did, in fact, kill another man and is, in fact, dangerous (which may be relevant to the objective reasonableness of defendant’s belief or to corroborate the likelihood that the victim would have made the statement attributable to him), it would be hearsay because it is relevant for this purpose only if the statement is true.
Defendant is charged with murder. He testifies that he has no recollection of what happened that night, and also calls an alibi witness. In rebuttal, prosecutor seeks to call a fellow patron at defendant’s favorite gastropub hangout to testify that defendant once described to him the confrontation that he had with the victim the night of the murder.
It depends. To the extent defendant’s statement to the patron is admitted to rebut defendant’s claim that he had amnesia, what matters is that defendant had some recollection about the events of that night—not specifically what that recollection was. For this purpose, defendant’s statement is not hearsay. To the extent defendant’s statement to the patron is admitted to prove what happened that night, the truth of the statement matters and it is hearsay (except that, under the federal rules, it is the statement of adverse party that is deemed “not hearsay” under FRE 801(d)(2)).
Husband and wife are in a custody dispute. Wife’s lawyer asks wife, who is testifying, “So how long after you learned from your husband’s best friend that your husband was doing drugs did you check his credit card purchases on your joint credit card?”
Hearsay. The attorney’s question calls for indirect hearsay because it implicitly elicits the best friend’s statement to wife.
Defendant is charged with killing a person who went around telling others that defendant “was heavy into selling drugs.” The statement is being offered to show defendant’s motive for killing the victim.
Not hearsay. The statement was not introduced for the purpose of showing that defendant was, in fact, “heavy into selling drugs.” Instead, it was admitted to show that the statement was made by the victim to a third party, which provided defendant the motive to kill the victim because she had betrayed his trust by sharing his involvement in criminal activity with others. For this purpose, it does not matter whether defendant was, in fact, “heavy into selling drugs.”
Same case. Prosecutor calls the chief police investigator assigned to the case, to testify that a police forensic expert examined the stolen money for fingerprints, and that the expert told the investigator that the fingerprints on the money matched those of defendant.
Hearsay. The expert’s out-of-court statement to the investigator is hearsay.
Defendant is charged with grand theft for stealing a high-end video game console from Eric Smith. Defendant testifies, “Smith’s roommate told me Smith gave the console to the roommate, and that I could have it because the roommate said he didn’t want it.”
Not hearsay. Here, defendant is introducing the statement to prove his lack of intent to steal. For this purpose, it does not matter whether what Smith’s roommate said is true; what matters is that defendant heard it.
Defendant is charged with shooting a victim. Prosecutor seeks to call a witness who will testify that, a few days before the shooting, defendant asked, “Can I get a gun?”
Not hearsay, at least under the federal rules. Defendant’s question is, at best, an implied assertion that defendant did not have a gun and was looking to acquire one. Implied assertions are not “hearsay” under the federal rules, but may be in certain state jurisdictions.
Defendant is charged with mayhem. Prosecutor calls a police officer to testify that her partner talked to a transient person who had heard from another transient person that a person matching defendant’s description had bitten off the victim’s earlobe outside of a bar.
Hearsay. This is three out of court statements and hence potentially three layers of hearsay—from the first transient person to the second; from the second transient person to the officer’s partner; and from the officer’s partner to the officer.
Prosecution of defendant, a tall blond man, for bank robbery. Defendant denies committing the crime. To prove defendant committed the crime, prosecuto calls a police officer to testify that she spoke with Zed, who witnessed the robbery, and that Zed said the crime was committed by a tall blond man.
Hearsay. Zed’s out-of-court statement to the officer is admitted to prove that defendant was the robber, and thus is hearsay.
Same case. At trial, the teller testifies that the robber was carrying a bag with the words, “I’m the Boss” on it. Prosecutor seeks to introduce a bag found at defendant’s house after his arrest. It has the words, “I’m the Boss” on it.
Not hearsay. The writing on the bag is a merely a verbal object
Defendant is charged with murder. Defendant calls her best friend to the stand to testify that defendant, on the afternoon of the murder, told her that she had “spent all morning with the architect planning my retirement home.” The murder occurred that morning.
Hearsay. The friend is relaying defendant’s out-of-court statement setting up an alibi. Defendant’s statement can set up an alibi only if it is true.
Plaintiff sues defendant for slander. Plaintiff calls a witness to the allegedly slanderous statement. Plaintiff asks, “Did you have a conversation with the defendant?”
Not hearsay. The question called for a “yes” or “no” answer, and hence would not have elicited any out of court statements. This was a premature hearsay objection.
Defendant is charged with rape. The victim’s best friend testifies at the preliminary hearing that the victim came back to the apartment they shared on the night of the alleged rape crying and told her that defendant had raped her.
Hearsay. Although the hearsay rule does not apply during preliminary examinations under FRE 1011(d)(3), the statement is still hearsay; but it will be admitted.
Same case. Assume Zed testified in an earlier trial of the same case that the robbery was committed by a tall blond man. The first trial ended in a hung jury. Before the case could be retried, Zed died. Prosecutor wishes to take the stand to testify that she was at the first trial, and heard Zed testify that the robber was a tall blond man.
Hearsay. Zed’s statement from the prior trial is still hearsay vis-à-vis the re-trial. (There are also significant issues with prosecutor testifying, at least if prosecutor is the advocate during the retrial as well.)
Same case. At trial, when asked what the robbery took place, the teller testifies, “The clock said 1:30 pm.”
Not hearsay. Machines such as clocks do not speak.
Defendant is charged with murder. Prosecutor seeks to introduce the defendant’s post-arrest statements to police that he was out sailing when the homicide occurred.
Not hearsay. Here, prosecutor is introducing defendant’s alibi statement to prove that it is false. As such, it is not admitted for its truth.
Same as prior question, but after the witness answers, “yes,” the plaintiff asks, “What did defendant say?”
Not hearsay. Defendant’s allegedly slanderous statements are verbal acts / legally operative facts that fall outside the definition of hearsay. Even if they did not, plaintiff is seeking to introduce defendant’s statements; as a statement of a party opponent, this would be hearsay but admissible as “not hearsay” under the federal rules. FRE 801(d)(2).
Defendant is charged with a rape that occurred five years earlier. Prosecutor seeks to call a police officer to testify that, just a week after the date of the alleged rape, the victim called the police to report that she had been raped.
Hearsay. The victim’s out-of-court statement reporting the rape constitutes “hearsay” because it is most likely being admitted to prove that the rape occurred. Some state jurisdictions—but not the federal rules—have a “fresh complaint” doctrine that allows such hearsay to be admitted in order to rebut a claim by the defendant that the victim is fabricating the rape allegations. E.g., People v. Brown, 8 Cal.4th 746, 748-750 (1994). Even in those jurisdictions, however, the statement is still hearsay.
Same case. Instead of taking the stand herself to relate the substance of Zed’s testimony at the first trial, prosecutor calls the court reporter who transcribed the testimony at the first trial, to read Zed’s testimony from the official transcript.
Hearsay, for the same reasons as Question 44.
Same case. At trial, the witness does not remember in which direction the suspect fled after he committed the robbery. Prosecutor calls a witness who testifies that when the police arrived and asked what direction the suspect fled, the teller pointed to the south door.
Hearsay. The tellers act of pointing was meant to communicate the direction of flight, which is an out-of-court statement being admitted for its truth.
The heirs to an insured sue the insurance company that has refused to pay out life insurance benefits on the ground that the insured committed suicide. The heirs seek to introduce the insured’s statement to them that she had spent the morning of the day she was found dead with the architect planning her retirement home.
Hearsay. The heirs are introducing this statement to prove that the insured planned to continue living, and hence did not commit suicide. To do so, the insured’s statement about planning for a retirement home must be true.
Defendant is charged with kidnapping. Prosecutor seeks to call an eyewitness to the abduction to testify that the abductor was wearing a t-shirt that said, “Stranger Things” in a specialized 1980s font; and a police officer to testify that a search warrant executed at defendant’s house recovered a t-shirt that said, “Stranger Things” in the same font.
Not hearsay. The “Stranger Things” t-shirt was not being admitted for its truth.
Defendant is charged with violating the terms of his probation by traveling out of state. Prosecutor seeks to introduce a computer-generated report of GPS data from an ankle monitor worn by defendant.
Not hearsay. The GPS data is computer-generated, and thus is not the “statement” of a person.
Same case. To prove defendant’s involvement, prosecutor calls a teller who was in the bank at the time of the robbery, to testify that just after the robbery, she told a police officer that the robber was a tall blond man.
Hearsay. The teller’s out-of-court statement to the officer is hearsay.
Same case. At trial, the teller testifies that defendant said to her, “I’ll kill you if you don’t give me the money.”
Not hearsay. The statement is offered for its independent legal significance as a threat and regardless of whether defendant would have, in fact, killed the teller had she not cooperated.