1. Hearsay is defined in Rule 801. The definition is quite specific, and much of what looks like hearsay is defined as NOT being hearsay and is therefore not subject to the hearsay rules.
2. Rule 802 purports to say that evidence that meets the definition of hearsay is not admissible. This is misleading. The REAL "rule" is that all hearsay is admissible. The only requirement is that you must be clever enough to find the loophole. The hearsay rule is a lawyer's dream. It is a rule consisting almost entirely of loopholes.
3. RULE NUMBER ONE: Everything that looks like hearsay is eventually admissible if you are clever enough to find the right loophole among the several hundred created by the rules and by court decisions.
4. RULE NUMBER TWO. No matter how hard you try, you will never actually understand hearsay. Luckily, neither will anyone else, including the judge, so you will not be at a disadvantage.
5. Hearsay works like this ----
Step (1). The opposing lawyer, in compliance with rule #2, makes a hearsay objection. If the lawyer actually understood hearsay, of course, he or she would not make a hearsay objection because the
lawyer would know that the evidence was in fact admissible through some loophole under rule #1. Hearsay objections are made in 2 situations:
a) Whenever a witness testifies he or she heard someone say something, or
b) Whenever any kind of written document is offered into evidence
Step (2). Now it's the proponent's job to come up with a reason why your evidence should be admitted -- the game is to "name that loophole." There are four types of loopholes:
a) Definitional. The evidence does not fit the definition of hearsay under Rule 801(a)-(c).
b) Exemptions. The evidence is simply exempted from hearsay in 801(d) for no particular rational reason.
c) Exceptions. The evidence falls into one of the specific exceptions listed in Rules 803-804.
d) Interests of justice. Even though it is hearsay and fits no exception, the judge should admit it anyway, "in the interests of justice" under Rule 807.
Step (3). The objecting attorney responds that the proponent has picked the wrong loophole. The two sides argue about the loophole, not the hearsay rule itself.
Step (4). The judge invokes rule #2 and rules randomly. Good judges generally admit the hearsay because of rule #1.
6. THE DEFINITION OF HEARSAY. The first loophole is that the evidence being objected to does not fit the definition of hearsay for one of three reasons:
(1) No content. The evidence does not describe the content of an out-of-court statement, either directly or by paraphrasing. For example, the testimony by a witness that she heard Bill shout does not describe the content of his shout and is therefore not hearsay. Testimony that she heard him shout "Fire" in a crowded theater does describe content and is (maybe) hearsay.
(2) Not an assertion of fact: Not everything said by someone is hearsay. Only statements describing facts or events that someone observed qualify as "assertions." For example:
(a) Signs. A street sign indicating that you have come to High Street does not assert anything observed by a particular person and is therefore not hearsay. A police report indicating that an accident occurred on High Street does report a fact observed, and is (potentially) hearsay.
(b) Nonassertive conduct: Conduct does not usually assert anything. The fact that you have come to class does not constitute any kind of assertion that you believe the class is valuable. Conduct is hearsay only if the person engaging in the conduct probably intended it to assert a fact observed, e.g., a police officer testifies that he asked "Who shouted fire," and several people pointed to Bill. The pointing is (potentially) hearsay.
(c) Independent legal significance. The words in a will, contract, or deed assert legal rights, responsibilities, and obligations. They do not describe events that were observed by the person who wrote it, and are not hearsay.
(d) Threats and promises. If the defendant threatens to kill the victim, he is not describing any event that he has observed, so it is not hearsay. This is tricky, because a threat may contain an assertion of fact, e.g., the threat "I will kill you with this gun" asserts the fact that the declarant has a gun.
(e) Questions. Most questions do not assert facts, e.g., "Do you think we should skip class today?" This is also tricky, because a question may contain an assertion, e.g., "Why did you skip class yesterday?"
(f) Commands. In the statement "The police officer told the defendant to freeze and put his hands in the air," the declarant is not describing anything he observed, so it is not hearsay. This is tricky, because a command may contain an assertion of fact, e.g., "Drop that weapon" asserts the fact that the declarant has observed the suspect with a weapon.
(3) Not offered for its truth. A statement is hearsay only if it is offered in evidence to prove that the fact asserted is true. If it is offered for some otherrelevant purpose, it is not hearsay. It is the
obligation of the respondent to convince the judge that there is a relevant purpose for the statement other than as proof of the fact asserted. Common examples are:
(a) Notice. In a slip-and-fall tort case, a witness testifies that the week before plaintiff's accident, Mary told the defendant that his parking lot was slippery. The primary relevance of the evidence is to show that the defendant had notice of the dangerous condition, not to prove that the lot was slippery a week before the accident.
(b) State of mind of listener. The defendant is charged with knowing use of stolen credit card. He testifies that a friend told him "This is my card and you may use it." The evidence is offered to prove the defendant's state of mind (lack of mens rea), not that the card really belonged to the friend.
(c) State of mind of the speaker. In a will contest, the administrator offers evidence that the decedent said "I hate my youngest son who has become a drug addict." The evidence is offered to show the state of mind of the decedent and explain why he cut the son out of his will, not to prove that the son is really a drug addict.
(d) The statement motivates conduct. In a tort case, the defendant testifies that he was speeding because he had gotten a telephone call from the hospital informing him that his son was in the emergency room. Note that accusatory statements made by witnesses to the police ("the defendant did it") offered to show why the police investigated the defendant are non-hearsay only if there is some genuine issue concerning why the police investigated him.
(e) The statement motivates another statement. In conversations between two people when we are interested in what one of them says, the statements by the other are not offered for their truth but to give meaning to the primary person's remarks. For example, in a police interrogation, when the Detective says "We know you drove the getaway car," it is not being offered to prove the defendant did the crime, but to explain why the defendant said "Yeah I was driving. What kind of deal can I get."