Evidence: Hearsay & Exceptions

What is the basic definition of hearsay under Federal Rule of Evidence 801(c)?

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted in the statement.

What is a 'verbal act' or 'legally operative language' in the context of hearsay?

A verbal act is an out-of-court statement offered not for its truth, but to prove that the statement was made, because the words themselves have independent legal significance (e.g., words of contract or defamation).

How does offering a statement to show its 'effect on the listener' avoid the hearsay rule?

A statement offered to show its effect on the listener is not hearsay because it is offered to explain the listener's subsequent actions or state of mind (e.g., notice or motive), rather than to prove the truth of the statement itself.

Under FRE 801(d)(2), what are the requirements for an opposing party's statement (admission by party-opponent) to be admissible?

An opposing party's statement is exempt from hearsay if it is offered against an opposing party and was made by the party in an individual or representative capacity, adopted by the party, or made by a co-conspirator during and in furtherance of the conspiracy.

When is a declarant-witness's prior inconsistent statement considered non-hearsay under FRE 801(d)(1)(A), rather than just impeachment evidence?

A prior inconsistent statement is non-hearsay and admissible as substantive evidence if the declarant testifies and is subject to cross-examination, and the prior statement was given under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.

What is the 'Present Sense Impression' exception to the hearsay rule under FRE 803(1)?

A present sense impression is a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

What distinguishes an 'Excited Utterance' (FRE 803(2)) from a 'Present Sense Impression' (FRE 803(1))?

An excited utterance must relate to a startling event and be made while the declarant is under the stress of excitement caused by the event, whereas a present sense impression requires no startling event but must be made almost contemporaneously with the observation.

Under the 'State of Mind' exception (FRE 803(3)), for what purposes can a declarant's statement of then-existing state of mind be admitted?

A then-existing state of mind statement can be admitted to prove the declarant's motive, intent, or plan, or to prove their emotional, sensory, or physical condition, but generally cannot be used to prove the fact remembered or believed.

What are the two main requirements for the 'Medical Diagnosis or Treatment' hearsay exception under FRE 803(4)?

The statement must be made for—and reasonably pertinent to—medical diagnosis or treatment, and it must describe medical history, past or present symptoms, their inception, or their general cause.

What is the foundational difference between 'Past Recollection Recorded' (FRE 803(5)) and 'Present Recollection Refreshed' (FRE 612)?

Past recollection recorded is a hearsay exception where a record is read into evidence because the witness cannot recall the events, whereas present recollection refreshed uses a document to jog the witness's memory, after which the witness testifies from their own revived memory (the document itself is not admitted as evidence by the proponent).