HEARSAY (H)

FRE 802

Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. For a statement to be considered hearsay, the evidence must be (1) an assertive statement (2) by a human being (3) still considered an out-of-court declarant at the time of trial and (4) offered at trial to prove the truth of the assertion.

Examples

• “The official police report of the scene indicated that Abraham was about 5 feet away.”
• “Tell us what you said in your statement regarding what happened when you heard this loud bang.”
• “In the days after all of this, what did the doctors tell you?”
• “What did you tell the press?”
• “George told me that he shot the President, yesterday.” (and George is not present at trial)

FRE 802. The Rule Against Hearsay

Hearsay is not admissible unless any of the following provides otherwise:

• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.

Summary

The hearsay rule “is premised on the theory that out-of-court statements are subject to particular hazards. The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements – the oath, the witness’s awareness of the gravity of the proceedings, the jury's ability to observe the witness's demeanor, and, most importantly, the right of the opponent to cross-examine – are generally absent for things said out of court.” Williamson v. United States, 512 U.S. 594, 598 (1994); U.S. v. Evans, 216 F.3d 80, 85 (D.C. Cir. 2000) (the problem with hearsay is that it deprives the opponent of the opportunity to cross-examine the person who uttered the statement at issue; “[C]ross-examination may be the greatest legal engine ever invented for the discovery of truth but it is not of much use if there is no one to whom it can be applied” (citation omitted)).

However, even if a statement falls within the definition of hearsay, the statement may still be admissible. The Federal Rules of Evidence provide numerous exceptions to the hearsay rule:

• Rule 801 sets out the exemption for statements or admissions by a party-opponent
• Rule 803 contains a list of 23 different exceptions to the rule.
• Rule 804 contains more exceptions if the declarant is unavailable as a witness.
• Rule 807 adds a final, “catch-all” exception.

Case Law (Generally)

• Definition of Hearsay Cases:
• U.S. v. Caira, 737 F.3d 455 (7th Cir. 2013)
• U.S. v. Caraballo, 595 F.3d 1214 (11th Cir. 2010)
• U.S. v. Martinez, 588 F.3d 301 (6th Cir. 2009)
• U.S. v. DeCologero, 530 F.3d 36 (1st Cir. 2008)
• U.S. v. Thomas, 453 F.3d 838 (7th Cir. 2006)
• U.S. v. Wright, 343 F.3d 849 (6th Cir. 2003)
• ACTONet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836 (8th Cir. 2000)


• In re C.R. Bard, Inc., MDL. No. 2187, Pelvic Repair System Products Liability Litigation, 810 F.3d 913 (4th Cir. 2016) (product liability action for injury from medical mesh implant used to support internal organs; data safety sheet of the mesh material component manufacturer was introduced because it says the material is not suitable to be surgically implanted in humans; sheet was inadmissible to prove the truth of the matter asserted (i.e., that the material was unsuitable for human implantation), but was admissible to show defendant had notice that material might be unsuitable)
• U.S. v. Lizarraga-Tirado, 789 F.3d 1107 (9th Cir. 2015) (statements that are hearsay must be made by a human, not a machine; satellite Google Earth maps and automatically generated digital markers or labels with GPS coordinates are not hearsay because they are not human assertions; court itself typed in GPS coordinates and witnessed the automatic nature of the coordinates; court therefore took judicial notice that the markings were machine generated and thus not hearsay; maps likened to photographs, which are not hearsay; joins 3rd, 4th, 7th, 10th and 11th circuits that machine generated statements are not hearsay)
• U.S. v. Picardi, 739 F.3d 1118 (8th Cir. 2014) (effort to have witness testify about defendant's out-of-court statements properly excluded as inadmissible hearsay)
• U.S. v. Wright, 739 F.3d 1160 (8th Cir. 2014) (a statement offered to show its effect on the listener is not hearsay)
• Kramer v. Wasatch County Sheriff's Office, 743 F.3d 726 (10th Cir. 2014) (in Title VII action, coworker's statement about having to tolerate sexual harassment not offered for truth but to show plaintiff heard what was said and that it contributed to her perception of workplace culture)
• U.S. v. Yielding, 657 F.3d 688 (8th Cir. 2011), cert. denied, 132 S. Ct. 1777 (2012) (Medicare fraud; defendant’s wife during an FBI interview said, “we made a loan” to a nurse, who then improperly ordered products from defendant and his wife, were not offered to prove the truth of the matter asserted, but rather to prove that it was false – the “loan” was not a loan, but a kickback; therefore the statement was not hearsay)
• U.S. v. Tann, 532 F.3d 868 (D.C. Cir. 2008), cert. denied, 129 S. Ct. 772 (2008) (statements on eighteen forged checks instructing bank to pay money from employer’s account “to the order of” defendant were not hearsay, since where the checks were offered only to prove that they had been created by defendant, not to prove the truth of any statement asserted on those checks)
• U.S. v. Lamons, 532 F.3d 1251 (11th Cir. 2008), cert. denied, 129 S. Ct. 524 (2008) (machine-generated compact disc (CD) of data collected from telephone calls made to airline’s corporate toll-free number on the date that call concerning false bomb threat was made was not a testimonial “statement” within the meaning of the Confrontation Clause or the Federal Rules of Evidence; CD was the statement of a machine, not a person, as no human intervened at the time raw billing data was recorded onto telephone company's data reels)
• U.S. v. Colon-Diaz, 521 F.3d 29 (1st Cir. 2008) (directions from one person to another do not constitute hearsay and nonhearsay includes statements offered to supply a motive for the listener's action)
• U.S. v. Quinones, 511 F.3d 289 (2d Cir. 2007) (murder victim's out-of-court statements were not received for truth but as circumstantial evidence of his state of mind to explain his and defendants' future actions)
• U.S. v. Serrano, 434 F.3d 1003 (7th Cir. 2006) (insurance documents and related correspondence were not hearsay, since they were not introduced for truth of matters they asserted but simply as circumstantial evidence linking defendant to drug house)
• U.S. v. Lewis, 436 F.3d 939 (8th Cir. 2006) (the fact that past out-of-court statements were made by a witness now testifying at trial does not remove them from the scope of the hearsay rule if they are offered to prove the truth of the matters asserted)
• Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004) (a memo normally is hearsay)

Statements Which Are Not Hearsay

If an out-of-court statement is NOT offered to prove the truth of the matter it asserts, then the statement is not hearsay. For example, the following out-of-court statements can be admitted into evidence, as long as there is no issue as to truth:

• Greetings
• Pleasantries
• Expressions of gratitude
• Questions
• Verbal acts such as offers
• Instructions
• Warnings
• Demands
• Exclamations
• Expressions of emotion

News Media

Courts generally hold that newspaper articles are inadmissible hearsay when the article is offered as proof of facts stated in the article, but was NOT acknowledged by the referenced party.

• Southern Wine & Spirits v. Alcohol & Tobacco CTrL., 731 F.3d 799 (8th Cir. 2013)
• Boim v. Holy Land Foundation for Relief and Development, 511 F.3d 707 (7th Cir. 2007)
• Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir. 2001) (evidence that children who saw costume at elementary school rally thought costume depicted popular children’s television character (Barney), and of newspaper clippings in which reporters had erroneously identified costume as a depiction of Barney, was offered not to prove truth of matter asserted by children and newspaper articles, but merely to prove that children and newspaper reporters had expressed their belief that costume depicted Barney – the character was actually Duffy the Dragon)
• Miles v. Ramsey, 31 F. Supp. 2d 869 (D. Colo. 1998)

Police Investigations

If an out-of-court statement was made for the limited purpose of explaining why a police investigation was undertaken, then courts will generally allow such testimony.

• U.S. v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997) (quoting McCormick on Evidence (4th ed.) § 249 at 104) (“[A]n arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene and should be allowed some explanation of his or her presence and conduct. However, testimony that the officer acted ‘upon information received,’ or words to that effect should be sufficient.”)
• U.S. v. Reyes, 18 F.3d 65 (2d Cir. 1994) (government may be permitted to offer out-of-court statement for purpose of showing investigating agent’s state of mind to help jury understand agent’s subsequent actions)

Crawford v. Washington – Criminal Cases

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. Const. amend. VI. “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Lilly v. Virginia, 527 U.S. 116, 124 (1999).

The Crawford case involved a tape-recorded statement given by the defendant’s wife to police describing the stabbing with which the defendant was charged. Pursuant to the state marital privilege, the wife did not testify at trial, so defendant had no opportunity to cross-examine her. The wife’s statement was admitted at trial over objection because the trial court determined that the statement had “particularized guarantees of trustworthiness.”

The Supreme Court overturned the trial court, holding that the Confrontation Clause bars the state from introducing out-of-court statements which are testimonial in nature, unless the declarant is unavailable as a witness and the defendant had a prior opportunity to cross-examine the declarant. 

“[D]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury because a defendant is obviously guilty. This is not what the Sixth Amendment proscribes.”

Crawford v. Washington, 541 U.S. 36, 62 (2004).