Evidence: Out of court statements which are non-hearsay

The following out of court statements are not hearsay—not considered hearsay (and are admissible):
    • Impeachment: A prior inconsistent statement may be offered to show that the witness is an inconsistent person, without necessarily being offered to prove the truth of the prior statement. But, if the purpose of the prior statement is to prove the truth of the assertion, then it is hearsay.
    • Verbal acts or legally operative facts: Words with independent legal significance such as words of contract or defamatory words. Words of offer, repudiation or cancellation of contracts; words that have the effect of making a gift or a bribe; words that are themselves an act of perjury or a criminal misrepresentation or a defamation.
    • Statements offered to show effect on the person who heard or read the statement: A statement that is relevant simply because someone heard it or read it is not hearsay. Hearing something can put someone on notice, can give someone a motive, or make someone’s belief reasonable.
    • Statements offered as circumstantial evidence of the declarant’s state of mind: A statement that unintentionally reveals something about the speaker’s state of mind is not hearsay. Examples include statements demonstrating insanity; lies that demonstrate a consciousness of guilt; questions that demonstrate a lack of knowledge.
-- Exam Tip -- Do not confuse statements offered as circumstantial evidence of declarant’s state of mind, which are almost always offered as evidence of insanity or knowledge, with statements that reflect directly on declarant’s state of mind, which are usually offered to establish intent. The former is not hearsay, while the latter is hearsay subject to a specific exception.

--Exam Tip --In deciding whether evidence is hearsay, ask yourself whether we are relying on the declarant’s credibility; i.e. does it matter whether the declarant is telling the truth? If not, the evidence is NOT hearsay.