The whole point of the hearsay objection is to keep out evidence the defendant would not have the opportunity to cross-examine.

FFRE 801(a)–(c), 802

The Basic Rule

The issue with hearsay is reliability. A witness may falsely present incorrect evidence based on a faulty perception, memory, narration, or sincerity. Despite the flaws, this is admissible if presented by one who observed the incidents. The issue comes when another party is testifying about the observations of another. Now, the jury is forced to review perception, memory, narration, or sincerity from two witnesses, one of which is not on the stand to testify.

“Hearsay means an out of court statement that a party offers in evidence to prove the truth of the matter asserted in the statement by the declarant.

Two questions then arise:

  1. Is the party offering the statement to prove the truth of what the statement says?
  2. Did the party mean to assert (communicate) that fact?

If the answer to both questions is “yes” the statement is hearsay.


United States v. Washington, 498 F.3d 225 (4th Cir. 2007). After taking a blood sample from Washington, a machine ran tests to produce lab results showing Washington had drugs in his system. Is the printout hearsay? The court said no, but Judge Carroll disagrees.

United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002). Schwarz was charged with assault, comments were made about Schwarz’s presence on the occasion. If the statements were admitted is it hearsay? It depends on the purpose for which it was admitted. If offered to show that someone wasn’t there, then it is hearsay. If it is offered to show that counsel was ineffective and on notice, then it is not hearsay.

United States v. White, 87 Fed. Appx. 566 (6th Cir. 2004). White arrived in the airport and filled declaration forms but excluded declaring firearms. He was searched and firearms were discovered. White wanted to admit at trial testimony from his traveling companion that he declared more items during the search. Is this statement hearsay?

Defining Assertions

An assertion is the intent to communicate something to others. This can include oral or written words and conduct.

Consider conduct, if an out of court gesture was made and that gesture is commonly understandable to have a meaning, then the meaning attaches. Further, if an out of court analysis inspection of a ship was used to assure the inspector, the inspector is not asserting anything. However, if an out of court visit to a nuclear test site is designed to communicate to an audience the safety of the site, visiting the site is asserting the site is safe. This goes to the sincerity of the individual.

Introducing Exceptions

There are five main categories of exceptions. That is, if the statement is hearsay, it is not admissible unless there is an exception. These categories include:

  • 801(d)(1): Past statements of a testifying witness
  • 801(d)(2): Opposing parties’ statements
  • 803: Exceptions applicable regardless of the declarant’s available
  • 804: Exceptions applicable only if the declarant is unavailable
  • 807: Residual exception

Most of the time these exceptions exist because of a need for the evidence or because the statement is more reliable than standard hearsay.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 2L Spring, Evidence

Will Laursen

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