Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, generally inadmissible under FRE 801(c) and California Evidence Code Section 1200 because the declarant cannot be cross-examined.
Exam Tip
TOMA - Truth Of the Matter Asserted. If offered for ANY other purpose, it's NOT hearsay.
What is Hearsay?
Hearsay is a statement that: (1) declarant makes outside current trial; and (2) party offers to prove truth of matter asserted.
Three-Part Test
| Element | Requirement |
|---|---|
| Statement | Oral, written, or conduct intended as assertion |
| Out-of-Court | Outside current proceeding |
| Truth of Matter | Offered to prove what was stated |
Not Hearsay Under FRE 801(d)
| Category | Description |
|---|---|
| Prior Inconsistent | Under oath at prior proceeding |
| Prior Consistent | Rebut fabrication charge |
| Prior Identification | ID of person perceived |
| Opposing Party Statement | Statement by party-opponent |
Non-Hearsay Uses
| Purpose | Example |
|---|---|
| Verbal Acts | "I accept" (contract) |
| Effect on Listener | Notice |
| State of Mind | Knowledge |
| Impeachment | Prior inconsistent |
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Related Terms
Excited Utterance Exception
An excited utterance is a hearsay exception under FRE 803(2) for a statement relating to a startling event, made while declarant was under stress of excitement, admissible because excitement eliminates opportunity for fabrication.
Present Sense Impression
A present sense impression is a hearsay exception under FRE 803(1) for a statement describing an event made while or immediately after the declarant perceived it.
Dying Declaration
A dying declaration is a hearsay exception under FRE 804(b)(2) for a statement by declarant who believed death imminent, concerning cause or circumstances of impending death, admissible in homicide prosecutions and civil cases when declarant unavailable.