HEARSAY DEFINITIONS [RULE 801, PARED DOWN]

Rule 801(d): Statements That Are Not Hearsay. (d) A statement that meets the following conditions is not hearsay: A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement *** or [“Declarant” means a person who spoke or wrote out-of-court. Some declarants are also trial witnesses.] Hearsay Pared Down

(2) An Opposing Party's Statement (2) An Opposing Party's Statement. The statement is offered against an opposing party and: (A) was made by the party *** [or] . . . Hearsay Pared Down

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed. ***   The statement *** does not by itself establish *** the existence or scope of the relationship under (D) Hearsay Pared Down

EXCEPT FOR those kinds of statements, the following [R EXCEPT FOR those kinds of statements, the following [R. 801] is a definition of "hearsay": Hearsay Pared Down

R. 801 Statement. "Statement" means a person's oral assertion [of a fact], written assertion [of a fact], or nonverbal conduct if the person intended it as an assertion [of a fact]. Hearsay Pared Down

(b) Declarant. "Declarant" means the person who made the statement. Hearsay Pared Down

(c) Hearsay. "Hearsay" means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter [fact] asserted in the statement. Hearsay Pared Down

WHY ELSE WOULD A TRIAL LAWYER OFFER TESTIMONY ABOUT SUCH A STATEMENT? MANY POSSIBLE REASONS; e.g.: TO PROVE STATE OF MIND (SELF-DEFENSE, NEGLIGENCE, AWARENESS, ETC.) TO IMPEACH A WITNESS’S CREDIBILITY (PRIOR INCONSISTENT STATEMENT) Hearsay Pared Down

HOW DO WE KNOW THE LAWYER’S INTENTION? THE JUDGE ASKS: “WHY ARE YOU OFFERING THIS?” ONLY THEN CAN WE TELL IF THE EVIDENCE WILL BE HEARSAY! A LIMITING INSTRUCTION WILL BE GIVEN Hearsay Pared Down

THE HYBRIDS MANY TIMES, CONDUCT [USUALLY NOT REGARDED AS STATEMENT] IS ACCOMPANIED BY EXPLANATORY WORDS [COULD INCLUDE A STATEMENT] (“ THIS $$ IS FOR THE BOOK I BOUGHT FROM YOU”) Hearsay Pared Down

TREAT THE TOTALITY AS CONDUCT. NO STATEMENT, SO NO HEARSAY Hearsay Pared Down

EXAMPLES OF HYBRIDS (CONDUCT + WORDS) ARMY PROMOTING OFFICER FROM 1ST LIEUTENANT TO CAPTAIN ASSIGNING A STUDENT TO AN ADVANCED CLASS CONFERRING A DEGREE PUTTING PATIENT IN I.C.U. Hearsay Pared Down