Definition of hearsay - Next Generation Bar Exam
- What is the status of a testifying witness's own earlier out-of-court statement offered for its truth?
- It is hearsay unless an exclusion such as FRE 801(d)(1) applies. The witness's presence at trial does not change the statement's out-of-court character.
- How do most courts treat questions and commands for hearsay purposes?
- As not assertions, and therefore not hearsay. A question or command is not ordinarily intended to assert a fact.
- What is the status under the Federal Rules of nonverbal conduct offered to prove the actor's belief, when the actor did not intend to assert anything?
- It is not hearsay, because it is not a statement. The Federal Rules rejected the common-law approach treating implied assertions as hearsay.
- Under FRE 801(a), what counts as a statement?
- A person's oral or written assertion, or nonverbal conduct the person intended as an assertion. Nonverbal conduct not intended as an assertion is not a statement.
- What is the status of a machine-generated record, such as an automatic GPS log created without human input?
- It is not hearsay, because no person made a statement. Its reliability is addressed through authentication.
- Asked who committed the crime, a nontestifying bystander pointed at the defendant. An officer describes the gesture to prove identity. What is its status?
- It is hearsay, because the gesture was nonverbal conduct intended as an assertion. Assertive conduct is a statement, and it is offered for its truth.
- Under FRE 802, what is the general rule on admitting hearsay?
- Hearsay is inadmissible unless a federal statute, the Federal Rules of Evidence, or Supreme Court rules provide otherwise. Exclusions and exceptions appear chiefly in Rules 801(d), 803, 804, and 807.
- What is the status under the Federal Rules of evidence that people failed to complain, offered to show a condition was safe?
- It is not hearsay, because silence not intended as an assertion is not a statement. Admissibility then turns on relevance and a foundation that complaints would have been made.
- Under FRE 801(c), what is hearsay?
- A statement the declarant does not make while testifying at the current trial or hearing, offered to prove the truth of the matter asserted. Both conditions must be met.
- Under FRE 801(b), who is a declarant?
- The person who made the statement. Machines and animals are not declarants.