The Hearsay Rule and Non-Hearsay: every key term you need (+ practice quiz)
25 flashcard terms for Evidence Topic 5, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Under FRE 801(c), an out-of-court statement offered in evidence to prove the truth of the matter it asserts. Both elements must be present, so a statement offered for any other purpose is not hearsay at all.
Statement (FRE 801(a))
A person's oral assertion, written assertion, or nonverbal conduct intended by that person as an assertion. Intent to assert is the controlling test, so unintended communication falls outside the rule.
Declarant (FRE 801(b))
The person who made the statement. Only a human being can be a declarant, which is why machine readouts and animal behavior fall outside the hearsay definition entirely.
Truth of the matter asserted
The proposition the out-of-court statement affirms. Evidence is hearsay only if its probative value depends on the jury believing that proposition is accurate.
FRE 802
The rule against hearsay. Hearsay is inadmissible unless a federal statute, the Rules of Evidence, or another rule prescribed by the Supreme Court provides otherwise.
Hearsay dangers
The four testimonial risks that cross-examination is designed to expose: faulty perception, faulty memory, ambiguous narration, and insincerity. Out-of-court statements escape all four safeguards.
Perception danger
The risk that the declarant misobserved the event described. Because the declarant was not under oath or subject to questioning, the jury cannot probe vantage point, lighting, or sensory capacity.
Memory danger
The risk that the declarant's recollection had faded or been distorted by the time of the statement. Cross-examination normally tests the strength and consistency of recall.
Narration danger
The risk that the declarant's words are ambiguous or convey a meaning different from what was intended. Without questioning, the jury guesses at the intended meaning.
Sincerity danger
The risk that the declarant lied or shaded the account. The oath, the demeanor of the witness, and cross-examination are the ordinary tools for testing candor.
Assertive conduct
Nonverbal behavior intended as a substitute for words, such as pointing at a suspect or nodding yes. It qualifies as a statement under FRE 801(a) and can be hearsay.
Non-assertive conduct
Behavior not intended to communicate anything, such as opening an umbrella or fleeing a scene. It is not a statement under the federal rule even though it implies a belief.
Implied assertion
A belief inferred from words or conduct that the speaker did not intend to assert, such as inferring a person is sober from a request that he drive. Generally outside FRE 801(a).
Machine-generated output
Readings produced by devices such as radar guns, thermometers, or automated timestamps. No human declarant exists, so the output is not a statement and hearsay analysis does not apply.
Animal-generated evidence
Behavior such as a trained dog alerting to narcotics. A dog is not a person, so its alert is not a statement, though reliability and training remain foundation issues.
Effect on the listener
A non-truth purpose in which the statement is offered to show notice, knowledge, motive, fear, or reasonableness of the hearer's response, not that the statement was true.
Verbal act
Words that carry independent legal significance, such as words of contract, defamation, bribery, or gift. They are offered because they were spoken, not because they were true.
Legally operative words
A synonym for verbal acts. The utterance itself creates, transfers, or extinguishes a legal right, so its truth is irrelevant and the hearsay bar does not apply.
State of mind circumstantially
Using a statement as circumstantial proof of the speaker's mental condition, such as an irrational remark showing insanity, without relying on the truth of its content.
Impeachment purpose
Offering a prior statement solely to show the witness has contradicted himself, undermining credibility. Because truth is not the object, the statement is not hearsay.
Background or context
A limited non-truth use in which a statement explains why an investigation began or why a party acted. Courts police this use closely to prevent smuggling in accusations.
FRE 801(d)(1)(A) prior inconsistent statement
A testifying witness's earlier inconsistent statement is non-hearsay only if it was given under penalty of perjury at a trial, hearing, other proceeding, or deposition.
FRE 801(d)(1)(B) prior consistent statement
A testifying witness's earlier consistent statement is non-hearsay when offered to rebut a charge of recent fabrication or improper motive, or otherwise to rehabilitate credibility.
FRE 801(d)(1)(C) prior identification
A testifying witness's earlier identification of a person after perceiving that person is non-hearsay, and it may be proved even if the witness now cannot recall the identification.
FRE 801(d)(2) opposing party statement
A statement offered against a party that the party made, adopted, authorized, made through an agent within the scope of employment, or that a coconspirator made in furtherance of the conspiracy.