Black-letter propositions
- 01
A statement can be oral, written, or intended nonverbal conduct; machine output without human assertion is not hearsay.
- 02
Words offered for notice, effect on listener, motive, or state of mind may be nonhearsay when truth is unnecessary.
- 03
Contract, defamation, threat, permission, and similar operative words are verbal acts.
- 04
Questions and commands can contain implied assertions depending on context.
- 05
Each layer of hearsay within hearsay needs its own exclusion or exception.
Use this attack sequence under time
Frame the issue
Identify declarant and exact statement.
Resolve the next checkpoint
State the proposition the evidence proves.
Resolve the next checkpoint
Ask whether truth is necessary.
Resolve the next checkpoint
Find exclusion or exception for every layer.
Finish the conclusion
Then apply confrontation and authentication.
Common wrong turns
- Calling evidence context does not avoid hearsay if truth is necessary.
- The same words can be admissible for one purpose but not another.
- Machine reliability is an authentication issue even when no hearsay exists.
Worked example
A manager hears 'the floor is wet,' and the statement is offered to prove notice before an injury.
Truth is unnecessary if the issue is whether the warning put the manager on notice. A limiting instruction can confine the use.
Practice this topic
How Rule 801 defines hearsay
Rule 801(a) defines a statement as a person's oral assertion, written assertion or nonverbal conduct, if the person intended it as an assertion. Rule 801(c) defines hearsay as a statement that the declarant does not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of the matter asserted. Rule 802 makes hearsay inadmissible unless a federal statute, the evidence rules or other Supreme Court rules provide otherwise.
The definition has two parts, so a statement offered for a purpose other than its truth, such as notice or a verbal act, is not hearsay under the text.
Layers of hearsay
Rule 805 says hearsay within hearsay is not excluded if each part of the combined statements conforms with an exception to the rule. Each layer must be analyzed separately, so a business record that repeats an outsider's statement needs an exception for the outsider's statement too.
A verbal act, such as words that make an offer or form a contract, is offered for the fact that it was said and not for the truth of an assertion in it. The text of Rule 801(c)(2) supports that reading, since only a statement offered to prove the truth of the matter asserted is hearsay. Ask what the statement is being used to prove before you ask whether an exception applies.
Frequently asked questions
What is the controlling rule for definition, nontruth use, verbal acts, and multiple layers?+
Hearsay analysis isolates the human assertion and the proposition for which it is offered, then resolves each layer separately.
How should I analyze definition, nontruth use, verbal acts, and multiple layers on the bar exam?+
Identify declarant and exact statement. State the proposition the evidence proves. Ask whether truth is necessary. Find exclusion or exception for every layer. Then apply confrontation and authentication.
What is a statement under Rule 801(a)?+
A person's oral assertion, written assertion or nonverbal conduct, if the person intended it as an assertion.
What is hearsay under Rule 801(c)?+
A statement the declarant does not make while testifying at the current trial or hearing, offered to prove the truth of the matter asserted in the statement.
Is a statement offered for something other than its truth hearsay?+
No. Under Rule 801(c)(2) the statement must be offered to prove the truth of the matter asserted to be hearsay.
What does Rule 802 say?+
Hearsay is not admissible unless a federal statute, the evidence rules or other rules prescribed by the Supreme Court provide otherwise.
How does hearsay within hearsay work?+
Under Rule 805, each part of the combined statements must conform with an exception to the rule, so every layer must be analyzed separately.