Definitions

Hearsay is a statement other than one made while testifying at the hearing to prove the truth of the matter asserted. 

An out-of-court statement is not hearsay if one does not have to believe the statement is true for it to be relevant in the lawsuit.

A statement is either an oral or a written assertion, or nonverbal conduct if it is intended as an assertion. 

Nonverbal conduct is hearsay only if the person intended to make an assertive statement by the conduct.

Evidence Used Circumstantially as Nonhearsay

Out-of-court statements which are only used circumstantially - not to prove the truth of the matter asserted - are not hearsay.  Examples of this include statements admitted to show: (1) the knowledge or state of mind of either the declarant or the recipient of the statement, when such is relevant to a case, (2) the declarant's lack of credibility, or (3) the meaning to the parties of the words involved in a statement.

Nonhearsay - Prior Inconsistent Statement Given Under Oath

If a witness testifies on the stand, a prior inconsistent statement by the witness given under oath subject to the penalty of perjury is admissible substantively to contradict the witness.

If the prior inconsistent statement was not made under oath subject to the penalty of perjury, it is only admissible to impeach.  If the witness is not on the stand, a prior statement can be admissible under the former testimony exception to the hearsay rule, if the necessary requirements are met (the declarant is unavailable, etc.).

Nonhearsay - Prior Consistent Statement

An out-of-court statement consistent with testimony on the witness stand is admissible substantively for the purpose of showing that the testimony given on the witness stand is not a recent contrivance when the opposing party has impeached credibility by use of a prior inconsistent statement.

An out-of-court statement consistent with testimony on the witness stand is admissible substantively to rebut an inference of bias if the consistent statement was made prior to the time that the reason for the bias occurred.

Nonhearsay - Prior Out-of-Court Identification by Witness at Trial

A prior identification by a witness is admissible if the witness is on the stand and testifying subject to cross-examination.

Nonhearsay - Admissions by Party

An out-of-court statement of a party is admissible, even though it was in his interest at the time he made it, and even though he had no personal knowledge of the facts contained in it.

In addition to the statement of a party, his actions which are inconsistent with the position he is taking in a case are admissible against him.

Nonhearsay - Adoptive Admissions

Statements made by others which a party has adopted through his actions are admissions.  This most commonly occurs when a party remains silent when a statement is made in his presence which he would deny if it were false.  Such statements are not admissible when a defendant is entitled to his Miranda rights. 

A party may adopt a statement without knowing its precise nature if he indicates that its author is a reliable person.

Nonhearsay - Vicarious Admissions

Statements made by an authorized agent, a partner, or a predecessor in title are admissible.

Nonhearsay - Statement by Employee

The statement of an employee while still employed concerning matters within the scope of his employment is an admission against his employer, even if the employee was not specifically authorized to speak for the employer.

Nonhearsay - Statement Made by a Conspirator

Admissions made by one co-conspirator are only admissible against another co-conspirator if made during the course of the conspiracy.  A conspiracy ends with the arrest of the co-conspirators.

Inadmissible Hearsay

Evidence which is hearsay and does not come within any hearsay exception is inadmissible.

Hearsay Exception - Prior Testimony

Statements made in contemplation of impending death, declarations against interest, former testimony, and statements of personal and family history require unavailability.  Other hearsay exceptions do not.

A witness who is available but refuses to answer questions or claims the privilege against self-incrimination is "unavailable" for purposes of the Rule 804 hearsay exceptions.

If prior testimony is offered in a case where the parties are not identical to the case in which the witness testified, the prior testimony is admissible only if the opposing attorney in the first trial had an opportunity and the same motive for cross-examination as the party against whom the statement is offered in the second trial.

Hearsay Exception - Declaration Against Interest

When the out-of-court declarant is unavailable, a statement made by him which was contrary to the declarant's pecuniary or proprietary interest and which would likely subject him to criminal or tort liability, or which would likely render invalid a claim which he might possess, is admissible as an exception to the hearsay rule, provided that it was against his or her interest at the time that it was made. 

If the statement is offered to exonerate a criminal defendant by showing that the out-of-court declarant committed the crime, the evidence must be corroborated.

Hearsay Exception - Statement Made with Knowledge of Impending Death

A statement of impending death is admissible only in civil cases and criminal homicide prosecutions.  The death of the declarant is not required (only unavailability).

Hearsay Exception - Present Sense Impressions and Excited Utterances

A present sense impression must be more contemporaneous with the prompting event than an excited utterance, but does not require an exciting event.

A witness may testify to a present sense impression stated by the declarant without having been in a position to observe the facts related by the declarant.

Hearsay Exception - Statements of Mental or Physical Condition

Statements of present physical or mental condition are admissible if offered to prove that condition. 

The present mental state exception can be used to prove actions in accordance with that mental state.

Statements of present physical condition are admissible if made to anyone.  Statements of past physical condition are admissible only if made to a doctor or the like for purposes of medical diagnosis.

Hearsay Exception - Past Recollection Recorded

If a witness on the stand testifies that he once had a memory of an event, that he recorded his memory at the time of the event, and that he no longer has any memory, then the record of the past memory may be read to the jury but the writing itself is not admissible by its proponent. 

The declarant must be on the witness stand for either a past recollection recorded or a nonhearsay statement of prior identification to be admissible.

Hearsay Exception - Business Records

Records kept in the routine course of business are admissible despite the fact that the declarant is available. 

Personal knowledge of the person who kept the record is not required, but someone with personal knowledge must have transmitted the information in the usual course of his business.

The business record exception is not applicable to a business record made in preparation for a lawsuit.

Hearsay Exception - Textbooks

Where the learned treatise exception applies, the passage in the learned treatise is admitted substantively.  However, the treatise itself cannot be admitted as an exhibit.

The learned treatise exception is available only after the opposing expert testifies and the proponent establishes the authority of the treatise.  The opposing expert need not admit to the authority of the treatise, but some expert must establish its qualifications.

Other Exceptions

Family records and reputation concerning family history are admissible to prove family relationships.  If the declarant is unavailable, his own statement concerning his personal history is admissible.

Documents more than 20 years old in proper custody come within the ancient documents exception to the hearsay rule.