27.1 The Hearsay Definition & Statements That Are Not Hearsay
Key Takeaways
- Hearsay is a statement—an oral or written assertion, or nonverbal conduct intended as an assertion—that the declarant did not make while testifying at the current trial or hearing and that a party offers to prove the truth of the matter asserted (FRE 801(a)–(c)); hearsay is inadmissible unless a federal statute or rule provides otherwise (FRE 802).
- Nonassertive conduct, machine-generated data, and animal behavior are not statements by a person, so they are not hearsay, although they still must be authenticated and may raise reliability concerns.
- A statement is not hearsay when offered for a purpose other than its truth, such as a verbal act with independent legal significance, its effect on a listener (notice, knowledge, fear, or motive), circumstantial evidence of the declarant's state of mind, or impeachment.
- Questions and commands generally assert nothing, and a statement offered to show that it was false—such as an alibi later proved untrue—is not offered for its truth.
- For every out-of-court statement, identify the declarant, the assertion, and the purpose for which it is offered; then check the exclusions in Rule 801(d), the exceptions in Rules 803, 804, and 807, and, in criminal cases, the Confrontation Clause.
27.1 The Hearsay Definition & Statements That Are Not Hearsay
Hearsay is the most heavily tested Evidence topic, and NCBE's outline gives it the largest share of Evidence questions. The first task is always definitional: before looking for an exception, decide whether the statement is hearsay at all.
The Definition of Hearsay (FRE 801(a)–(c))
Under FRE 801(c), hearsay is a statement that:
- The declarant does not make while testifying at the current trial or hearing; and
- A party offers in evidence to prove the truth of the matter asserted (TOMA) in the statement.
┌──────────────────────────────────────────────┐
│ Did an Out-of-Court Human Statement Occur? │
└──────────────────────┬───────────────────────┘
│ YES
▼
┌──────────────────────────────────────────────┐
│ Is the Statement Offered for the Truth of │
│ the Matter Asserted (TOMA)? │
└──────────────┬───────────────────────────────┘
│
NO │ YES
▼ │ ▼
┌───────────────────┐ │ ┌──────────────────────────────────┐
│ NON-HEARSAY │ │ │ PRIMA FACIE HEARSAY │
│ - Verbal Acts │ │ │ Is it excluded under FRE 801(d)? │
│ - Effect on Hearer│ │ └────────────────┬─────────────────┘
│ - Circumstantial │ │ │
│ - Impeachment │ │ YES │ NO
└───────────────────┘ │ ▼ │ ▼
│ ┌─────────────┐ │ ┌──────────────┐
│ │ EXCLUSION │ │ │ EXCEPTIONS │
│ │ FRE 801(d) │ │ │ FRE 803/804 │
│ │ (Substantive│ │ │ or EXCLUDED │
│ │ Evidence) │ │ │ (FRE 802) │
│ └─────────────┘ │ └──────────────┘
1. What Constitutes a "Statement"? (FRE 801(a))
A "statement" is an oral assertion, written assertion, or nonverbal conduct, provided the person intended it as an assertion.
- Assertive Conduct: Gestures intended to communicate a factual proposition constitute statements. Nods of the head, a thumb pointed toward an alley, or pointing out a suspect in a police lineup are assertive conduct and treated as spoken words.
- Non-Assertive Conduct: Conduct not intended as an assertion is not a statement, and therefore cannot be hearsay. For example, opening an umbrella is conduct showing it is raining, but because the actor did not intend to communicate "it is raining," the act is non-hearsay. Similarly, a person shivering or fleeing from a crime scene is non-assertive conduct.
2. Who is a "Declarant"? (FRE 801(b))
A declarant is a person who makes a statement. Statements must originate from human communication. Non-human output is not hearsay:
- Machine Output: Raw, automated readouts generated mechanically or electronically without human input are not hearsay. Examples include automated speed radar displays, time-stamped digital receipts, raw GPS tracking pings, call logs automatically generated by telecommunications servers, and thermometer readings. (Such items are evaluated under foundation and authentication, not hearsay).
- Animal Actions: The reaction of a certified narcotics detection dog, the tracking path of a bloodhound, or a cockatoo screeching words does not constitute a hearsay declarant.
3. Out-of-Court Context
An out-of-court statement is any statement made outside the immediate proceeding before the current factfinder. Crucially, a witness's own prior statement made in an earlier deposition, preliminary hearing, or prior trial is an out-of-court statement when offered at the current trial.
4. Offered to Prove the Truth of the Matter Asserted (TOMA)
A statement is offered for TOMA when its probative value depends directly on whether the declarant was telling the truth. If the jury must believe the substantive content of the assertion to establish the proposition for which it is offered, it is hearsay.
Non-Hearsay Uses (Statements Not Offered for Truth)
When an out-of-court statement is relevant simply because it was spoken or heard, regardless of whether it is true or false, it is not hearsay. The MBE routinely tests four non-hearsay doctrines:
1. Verbal Acts / Legally Operative Facts
Words that alter legal rights, create obligations, or establish legal status possess independent legal vitality. The issue is whether the words were spoken, not whether they were true.
- Contract Formation: "I offer to sell you my vintage tractor for $10,000" and "I accept your offer." The truth of the statement is irrelevant; speaking the words creates contractual relations.
- Defamation / Slander: In an action for defamation, the plaintiff introduces the defendant's out-of-court statement: "Dr. Smith is an unlicensed fraud who botches surgeries." Offered to prove slander was published, not that Dr. Smith is a fraud.
- Words of Gift or Transfer: "I am giving you this Rolex watch for your graduation." The words characterize the physical transfer as a gift rather than a bailment or loan.
- Commercial Notices & Cancellations: "We hereby reject your shipment of steel as non-conforming" or "We cancel our insurance policy effective immediately."
- Criminal Threats & Extortion: "If you testify against Tony, I will burn down your house." The utterance forms the actus reus of extortion or witness tampering.
- Fraudulent Misrepresentations: "This diamond is completely flawless." Offered in a fraud prosecution to demonstrate false statements were made to deceive buyers.
2. Effect on the Listener or Reader
A statement offered to prove the knowledge, notice, warning, reasonable apprehension, or motive of the person who heard or read it is non-hearsay.
- Notice of Dangerous Condition: In a slip-and-fall action against a grocery store, a customer testified she told the store manager ten minutes before the fall: "There is broken olive oil spilled in aisle 4." The statement is not admissible to prove oil was on the floor, but is admissible non-hearsay to prove the store had notice of the hazard.
- Self-Defense / Reasonableness of Apprehension: Defendant claims self-defense in a murder prosecution. Defendant offers testimony that a third party told defendant earlier that morning: "The victim bought a gun and swore he was coming to kill you today." The statement is admissible not to prove the victim actually bought a gun, but to establish defendant's subjective state of mind and reasonable fear of imminent deadly force.
- Motive: In a homicide trial, the prosecution introduces a letter sent to the defendant stating that defendant's business partner was secretly embezzling company funds and having an affair with defendant's wife. Offered to show defendant had a motive to kill, not that the partner was actually embezzling.
3. Circumstantial Evidence of Declarant's State of Mind
Statements that demonstrate the declarant's state of mind circumstantially (without directly asserting the state of mind) are non-hearsay.
- Insanity / Delusion: Declarant shouts: "I am the direct reincarnation of Alexander the Great!" Offered not to prove declarant is Alexander the Great, but circumstantially to demonstrate delusional mental illness.
- Affection or Hostility: In a will contest, declarant's statement: "My nephew John visits me every day and treats me like gold" is admissible circumstantially to show testator's fondness for John.
- Distinction: A direct statement ("I am terrified of spiders" or "I plan to travel tomorrow") is an assertion of state of mind that falls under the FRE 803(3) hearsay exception rather than non-hearsay.
4. Impeachment by Prior Inconsistent Statement
When a witness testifies at trial, their out-of-court inconsistent statement may be introduced solely to demonstrate that the witness tells conflicting accounts, impeaching their credibility. Unless the prior statement satisfies an independent exclusion or exception, the opposing party is entitled to a limiting instruction under FRE 105 instructing the jury to consider the statement solely for credibility, not for its substantive truth.
Applying the Hearsay Definition
Implied Assertions and Nonassertive Words
- Conduct not intended as an assertion: Under the Federal Rules, conduct that the actor did not intend as an assertion is not hearsay, even when offered to prove the actor's belief. A ship captain who inspects a vessel and then sails away on it with his family is not asserting that the ship is seaworthy, so evidence of his conduct is not hearsay under Rule 801.
- Words used without intent to assert the fact in question: A caller who phones a suspected bookmaking location and says, "Put $50 on the third race" is placing a bet, not asserting that the premises are used for gambling. Most federal courts treat such calls as nonhearsay when offered to show the use of the premises.
- Questions and commands: Questions ("Did you hide the money?") and commands ("Get the gun!") usually assert nothing and are not hearsay, although courts look closely at questions that clearly embed a factual assertion.
Statements Offered for a Purpose Other Than Truth
- Falsity: A defendant's out-of-court alibi statement that is shown to be false may be offered to prove consciousness of guilt; the prosecution is offering it precisely because it is untrue.
- Explaining police conduct: Testimony about a tip may be admitted to explain why officers went to a location, but courts limit its detail because jurors may treat the tip's content as true.
- Prior testimony offered to prove perjury: In a perjury prosecution, the defendant's prior false testimony is offered to show that it was said, not that it was true.
Common Traps
- A testifying witness's own prior statement is still hearsay if offered for its truth, unless it qualifies under Rule 801(d)(1) or an exception.
- Records created by people are statements: Reports, logs, and e-mails authored by people are hearsay if offered for their truth, while purely machine-generated output is not.
- Multiple layers: A document may contain several statements; each layer must be analyzed separately (FRE 805; Section 27.4).
| Out-of-Court Words or Conduct | Offered to Prove | Hearsay? |
|---|---|---|
| "I accept your offer." | That a contract was formed | No—verbal act |
| "The brakes on your truck are failing." | That the owner had notice of the danger | No—effect on the listener |
| "The brakes on your truck are failing." | That the brakes were actually failing | Yes |
| "I am the Queen of England." | That the speaker was mentally ill | No—circumstantial evidence of state of mind |
| A radar gun display reading 72 mph | The car's speed | No—machine output (authentication required) |
| An eyewitness points to the defendant in a lineup | That the defendant was the robber | Yes—assertive conduct (but see Rule 801(d)(1)(C)) |
In a breach-of-contract action, the plaintiff testified that at a meeting the defendant said to him, 'I accept your offer to buy the drilling equipment for $50,000.' In a separate negligence action against a landlord, a tenant testified that two weeks before she fell on the stairs, she told the landlord, 'The stair railing is loose.' In each case, the defendant objected on hearsay grounds. How should the courts rule?
In a robbery prosecution, the government offered three items: (1) the automatically generated time stamp '10:42 p.m.' on a store's surveillance video; (2) testimony that a trained police dog, following a scent from the scene, led officers to the defendant's garage; and (3) testimony that an eyewitness, when asked by an officer which way the robber ran, silently pointed toward the alley behind the store. The eyewitness did not testify. The defendant objected to all three on hearsay grounds. Which item is hearsay?