What Exactly is "Non-Hearsay?" Tackling This Tricky Evidentiary Principle on the UBE

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We have all seen and experienced those dreaded MBE questions on the exam where the four answer choices look like this:

 

A)   Hearsay because XXXXX.

B)    Hearsay.

C)    Non hearsay.

D)   Hearsay because YYYYY.

 

These are undoubtedly tricky (and frustrating!) questions and determining which of the four answer choices is ultimately correct can be daunting.  This post is designed to explain one of these four answer choices, that of non hearsay.

 

For starters, what exactly IS non hearsay?

 

Statements that are not offered for the truth of the matter asserted (for example statements only offered to show the effect on the listener or to corroborate the witness’s testimony) are not hearsay, and therefore are admissible.

 

The basic definition of hearsay for the bar exam is as follows:  Hearsay is an out-of-court statement, made by a person, whether oral or written, offered to prove truth of the matter asserted that is generally inadmissible unless an exception of an exclusion applies.  Evidence is “hearsay” if it is a statement (that is, an “assertion,” either oral or written), made by the declarant (i.e., the person who made the statement) at any time or place other than while testifying in court at the current trial or hearing, and the statement is being offered to prove the truth of the matter asserted. 

 

For example, if a trial witness such as a law enforcement officer attempted to testify about what an eyewitness at the scene of the crime said that he or she saw, and that statement was offered to establish that the events transpired as the witness reported, the statement would be inadmissible hearsay unless another statute or rule authorized the admission of the statement.

 

On the bar exam, whenever we see that a statement has been made out-of-court (hereinafter “OOC”), we immediately jump and say, this is hearsay!  Slow down!  We also must determine if the statement was made for the truth of the matter asserted

 

BAR EXAM NOTE – When you have determined that an OOC statement was made, do not immediately assume that it is hearsay, and instead carefully determine if that statement is also being made for the truth of the matter asserted.  If it is NOT, it will NOT be deemed hearsay, and an answer choice like “non hearsay” may be the correct answer.

 

Some out-of-court statements may look like hearsay at first glance but are NOT hearsay if they are NOT being offered to prove truth of the matter asserted! An OOC stmnt may be relevant to some issue simply because it was spoken or written.  If offered for some other purpose, the credibility of the declarant is IRRELEVANT! 

 

On the issue of whether the statement was spoken, the witness on the stand can be cross examined or if the statement was in writing, it can be examined as exhibit.  For example, if someone asserts a claim at trial for damages related to pain and suffering, they may present a witness to assert that the deceased said, “X committed the offense.”  Is that hearsay? YES, because it is an OOC stmnt to prove the truth of the matter asserted, aka prove the claim being made.  However, what if it is used for another purpose? NOT hearsay!  So the next logical question would be, what other purpose could it be used/made for?  To answer that question, we turn to the principal categories of non hearsay.

 

Principal Categories of Non-Hearsay Purposes –

 

1 – Verbal Act –

         A verbal act is where the substantive law gives legal effect to certain words simply because those words were spoken.  The entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights. The rationale for allowing these kinds of statements into evidence is that since the law accords the making of such statements a certain legal effect, the sincerity and reliability of the declarant is of no consequence; the simple fact that those statements were made is relevant.

2 – To Show the Effect on the Person who Heard or Read the Statement -

         Not hearsay if offered to show someone had prior notice of the condition or situation.  It shows the EFFECT on the listener.  Conceptually, this is really just a sub-set of statements that are “not offered for the truth of the matter asserted,” but the case law has particularly recognized that statements which are offered for the non hearsay purpose of explaining why a person took a particular course of action (“explains conduct”) or reacted in a certain way to that statement (“effect on the listener”) are not excluded as hearsay

 

3 – Circumstantial Evidence of the Speakers State of Mind –

        If you argue insanity as a defense for example? You can offer a witness who will testify as to some circumstantial EV that you were actually insane.  Or, we could bring in evidence regarding what your state of mind was at the time of an alleged act.  For example, “I was scared of the defendant because I heard he did X”

 

4 – Corroboration of Testimony –

       Statements or writings offered to corroborate a witness’s testimony are not offered for the truth of the matter asserted and are therefore not excluded.  For example, a victims' statements to officer were admissible to corroborate admitted statements to health care personnel who treated them at the time of the assaults.  Or, recordings of witness's telephone calls from jail were admissible at murder trial for non hearsay purpose of corroborating witness's testimony that defendant had shot victim.

 

BAR EXAM NOTE – The Confrontation Clause – There is no confrontation clause issue when statements are admitted under the “not for the truth of the matter asserted” aka non hearsay rationale because by their very nature, they are not considered testimonial and therefore they fall outside the scope of what is protected by the confrontation clause!


Conclusion

          It is extremely important to understand the application of non hearsay within the context of hearsay, generally.  Success on the likely 3-4 MBE questions in this area of law, and perhaps success on an evidence MEE issue depends on your knowledge of the law. For more information concerning this section of Evidence, another area of Evidence, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com 


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