parent nodes: best evidence rule | evidence | hearsay
non-hearsay use
Out-of-court statements may be used despite the hearsay rule if they are not used to prove the truth of what they assert. The non-hearsay use of these statements avoids the usual "triangulation" problem of hearsay. Generally, in these exceptions, the content of the statement is less important than the statement's context, significance, or effect. Note that the list of non-hearsay uses below is not necessarily exhaustive, since all these uses are implied from the definition of hearsay.
(a) Statement.
A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant.
A "declarant" is a person who makes a statement.
(c) Hearsay.
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Rule 802(a)–(c).
Verbal acts
An out-of-court statement may be admissible if the relevance of that statement is that the statement is itself legally significant, rather than if the statement asserts something the jury is to decide. Admitting "verbal acts" is necessary in any case where the legal consequences of an act depend on something somebody said, such as in fraud, contract, [defamation], conspiracy, or [perjury]. Verbal acts may also be admissible where the content of person's words are irrelevant, but that the fact that the person did say something is relevant; for example, the fact that a person in the wreckage of an airplane crash says "I'm alive" is admissible as a verbal act, not because it matters what the person said, but that the fact that the person said something shows that he was alive.
Although the assertion that a verbal act makes is unimportant, the particular words a verbal act uses are important, since they help the factfinder understand the context and significance of the act. For example, the words of a person holding a gun but saying "Don't worry, I won't shoot; I'm only cleaning the gun" are less likely to show that the person's acts were meant to take property by force, and thus that the person was less likely to have committed robbery. The objective words of a verbal act are important, rather than the subjective state of mind of the person uttering those words.
Impeachment
Inconsistent testimony may be used to impeach a witness without being hearsay, on the theory that the use of hearsay for impeachment does not depend on whether any one statement the declarant made was true, but on the fact that the witness changed his story. The inconsistency between two statements can thus imply that the witness was lying, biased, or unable to accurately recall the matters to which he testified.
Note the obvious tendency for a jury to use evidence of inconsistency not for impeachment, but to judge whether the matters asserted are actually true or not. In this case, the evidence can still be kept out under Rule 403 relevance grounds.
Effect on listener or reader
Out-of-court statements may also be admissible to show that they caused somebody to act, know, believe, or feel a certain way. This exception is particularly relevant for any issue that depends on a person's mental state, such as intent in [torts] or mens rea in criminal law. For example, a statement made to a defendant might be admissible in order to show that the defendant knew that he was receiving stolen property.
Such statements might also be admissible to show their effect on the police who investigated or arrested a defendant—by showing that certain statements caused the police to suspect the defendant, the statements can prevent the policemen's otherwise valid actions (such as following a defendant) from looking paranoid or oppressive. At the same time, the statements that led the police to investigate someone might be highly prejudicial accusations, for example if a person told the police outright that the defendant committed the crime; in this case, exclusion on Rule 403 grounds for irrelevance or prejudicial effect would be appropriate.
Verbal objects and markers
Words or writing may also be used for a non-hearsay purpose if they serve as a description of a particular object or location. For example, a license plate can serve as a verbal object, because it identifies the car to which it is affixed. Any words affixed more or less permanently to any phyiscal object can serve the same function, for example nametages, monograms on suitcases, advertising slogans or corporate logos, or brand names or product descriptions on commercial goods.
"Verbal objects," which are essentially labels, do assert something to be true; for example, a license plate on a car is an assertion by the DMV or by the car owner that the car does have a valid license, and that the number on the plate is accurate. The "declarant" in this sense is typically a corporate entity. Verbal objects are still valid exceptions to hearsay, however, because they need not carry the same risks as hearsay usually does. Simple labels attached to an object are usually reliable indicators of who owns or made that object. Not only would a person be unlikely to monogram his briefcase, for example, with initials other than his own, but a commercial good such as a can of peas is unlikely to be mislabelled.
Note that verbal objects may often require foundation evidence in order to show their authenticity, for example in the bar hypothetical described below.
• Problem 3-G, “Eagle’s Rest Bar & Grill,” pg. 129• three people involved in drug conspiracy, and problem is linking them together. Prosecutor’s way to do this is link them to same places (ignore probative value and other problems for now)
• matchbook found in pocket:
• theory: assertion that the matchbook came from that specific bar
• declarant is whoever’s in charge of marketing, or something like that
• ex. vanity license plate says “SxyMom4” clearly asserts something: the declarant believes the driver to be a sexy mom letting this in would be hearsay. But a license plate that says “xyz123” doesn’t assert anything, but can be used to match (so can SxyMom4)
• in matchbook example, can get around hearsay by connecting the bar to the symbol (have an employee testify about it), then connect the symbol to the matchbook this avoids the problem of having the jury conclude from the matchbook that it comes from the bar
• mug w/ nickname on it:
• assertion if mug says “I am a fan of UofI”, and prosecutor admits evidence to show that owner was, in fact, a UofI fan
• get maybe around hearsay by probabilities/circumstantial evidence by arguing that owner of mug is more like ly to be a UofI fan
• waitress’s testimony identifying two to an agent:
• example of a verbal marker
• testimony is not being offered to identify Seaver, but is to establish that she brought the two together
• agent’s testimony is to establish who she pointed at
Circumstantial evidence of state of mind
Normally, it would be hearsay to introduce something a person said in order to show that such person had a particular state of mind; the speaker, by saying the words he does, intends to assert that he has a particular state of mind. However, in some cases, the behavioral or performative aspect of a statement can help the finder of fact infer that the speaker did have some state of mind, while the statement itself does not directly assert that the speaker did in fact have such mental state. The fact that the speaker did act in a certain way is relevant, rather than the particular words the speaker used. For example, the fact that a spouse would talk to a third party about problems with the other spouse is evidence itself that the marriage might be in trouble.
(Problem 3-H, “Anna Sofer’s Will,” pg. 130)
• bring in statements in will?• “I leave him a dollar” has independent legal significance can come in regardless
• everything else comes in b/c statements themselves evidence the value of the relationship
• hearsay problem if asking jury to conclude that she truly believes “he’s a jerk”
• Betts v. Betts, Wash. Ct. App. 1970 (pg. 150)• custody case where the declarant is 5 years old
• statements that foster father killed her brother is clearly hearsay if used to prove that fact
• also, if offered to show the declarant believes this, it’s hearsay
• problem: b/c declarant is 5, there may be a competency question to determine whether hearsay exception should come in
• Ct: very fact she says this (and implying regardless of whether she believes it) shows itself that she is uncomfortable w/ the man
• trial ct reaching an “effect on the listener”? that by hearing it, it will affect the father’s relationship w/ her
• Lying (Problem 3-J, “My Husband Is in Denver,” pg. 142)• routinely treated as non-hearsay to prove that person was lying
• offered to say it doesn’t prove the truth of the matter asserted, but the falsity
• proof comes in to show statement was made, and other proof comes in to show statement was false (no tickets bought in his name)
• FOC: her awareness of his guilt, to show it’s more likely he committed the crime
Circumstantial evidence of memory or belief
A few jurisdictions allow out-of-court statements to corroborate that a person did remember something accurately. For example, in [Bridges v State], the court allowed in the out-of-court statements of a child abuse victim describing the room in which she was abused, to show that her statements matched the defendant's room. This evidence helps show that the declarant was accurate in her description, so that it was more likely that she did in fact experience what she claimed.
Note, however, that most jurisdictions reject this rule, given the uncertainty as to what the declarant actually knows or imagines, especially in the case of children or other possibly suggestible witnesses.