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  ,   Queen v Phyllis 
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Hearsay

First, hearsay must be a ³statement.´ That is, it must actually state a fact. This is actually a huge
limitation (although few attorneys or judges actually recognize it). For instance, a question is not
hearsay, unless the question also makes a statement. (³Are you flunking chemistry?´ is not a statement.
³Do your parents know that you are flunking chemistry?´ probably is.) Also, a grunt is not usually a
statement. In general, a statement is anything, whether or not verbal, that can be understood to state a
fact. In the words of the rule, a statement is ³an oral or written assertion´ or ³nonverbal conduct «
intended by the person as an assertion.´ So a statement must assert a fact. A fact is something that can
be either true or false. So ³I ate the last cookie´ is a statement. So is ³yes,´ if in answer to the question
³Did you eat the last cookie?´. So is nodding, if in answer to the same question.

In order to be hearsay, a statement must be ³prior´ and ³out-of-court.´ Prior will always be true ±
obviously, no one will testify to a future statement, and the jury can hear any contemporaneous
statement that a witness can hear. ³Out-of-court´ does not mean out of court. It means ³not in the
present proceeding, and without the trappings of a formal proceeding.´ The distinction is important
because depositions, which are not taken in the court room, may be admissible as non-hearsay in
some circumstances.

The biggie is that hearsay must be ³offered for the truth of the matter asserted therein.´ Let me give
you an example that will make it clearer why this is an important distinction. Counsel wants to prove
that Witness knew, or at least thought, that he was late for class. Witness has just finished testifying
that the principal stopped him in the hall on the way to class in order to talk to him. As a matter of fact,
the principal stopped him to say, ³Where are you going? You are already late for class!´ Is this
evidence hearsay?

The answer is, ³no.´ Neither sentence is hearsay. The first, a question, is not hearsay because it is not
even a statement. Therefore it cannot be a prior, out-of-court statement offered for its truth. The
second sentence is non-hearsay as well. Although it is a statement, it is not offered for its truth ± it is
simply offered to show that the witness had been told that he was late for class. It does not matter
whether he actually was late for class. The statement shows his awareness even if it is not true.

First, 801(d)(1) provides that certain prior statements by a witness who actually took the stand at trial
are not hearsay. In particular, prior inconsistent statements are not hearsay. For example, Phyllis is
interviewed on direct examination by the defendant and testifies that a certain singing and dancing
trout fell from a great height and hit the deck of a boat, but caused no damage because it bounced
right off. The plaintiff, in his rebuttal case, then calls George to the stand. George is going to testify
that Phyllis told him the trout fell from a great height. He will then testify that Phyllis told him the
trout did not bounce, but continued falling through the deck. Is George¶s testimony hearsay?

The first sentence is hearsay under the rules we have learned so far. George is going to testify to a
prior consistent statement ± Phyllis testified today that the fish fell, and George wants to testify that
she told him a long time ago that the fish fell. Those statements are consistent with one another. The
second sentence, however, is not hearsay because it is a prior, inconsistent statement. Phyllis testified
on the stand that the trout bounced. George will testify that she told him it did not bounce. Those two
statements are inconsistent with one another.
1. Present sense impression & Excited Utterance

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Present Sense Impression ± Statement made while one was perceiving Event or in Immediacy8 9
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1. Present sense impressions are statements that describe an event as it unfolds. Sportscasters
specialize in these statements: whatever the sport, most of them note the athletes¶ movements as they
occur. Generations of baseball fans have heard monologues like: ³He¶s stepping up to the base,
tapping his bat on the plate, and getting in position. The pitcher is winding up, and now here comes
the pitch«.´ Excited utterances come from excited people responding to a startling event. These
statements are as familiar to us as sports broadcasts. Common excited utterances are: ³Touchdown!´
³Watch out for the car!´ and ³Ouch!´

2. Present sense impressions and excited utterances arise frequently in litigation. When a crime or
accident occurs, the victim and eyewitnesses make numerous statements about the event. Someone
may call 911 to report the trauma, others may exclaim to one another about what they see. Victims
and bystanders also talk about the incident to police, rescuers, and family members. Parties often offer
these statements in court as present sense impressions or excited utterances. Witnesses who did not
perceive the event may testify about what the victims and bystanders said: ³She shouted that a man in
a red shirt was pulling out a gun.´ ³I heard him cry that the stairway was collapsing and crushing a
young girl.´

2. Reputation as to character ± Literally.

3. Reputation as to personal or family history ± Literally.

4. Then Existing Mental, Physical, or Emotional Condition ± If someone says, ³Yowch, my arm hurts´
they are probably telling the truth. Anyhow, there is no better way to test it.

Objections below are possible ã
 when declarant is present

1)Ê Former testimony ± if the declarant gave sworn testimony, either

earlier in the present proceeding or in a different proceeding, that
testimony is considered to be nearly as good as current testimony
would be, ? ? ?
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The judgment here appears to be that people do not generally lie in
formal proceedings, and if they do the crucible of cross-examination
may find it even if the cross-examiner has different goals than the
present litigant.

2)Ê Statement against own interest

3)Ê Statements about family history