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Article VIII
- Hearsay
Rule 801. Definitions
The following definitions apply under this article:
(a) Statement -- A statement
is an oral or written assertion or nonverbal conduct
of a person, if it is intended by the person as
an assertion.
(b) Declarant -- A declarant
is a person who makes a statement.
(c) Hearsay -- Hearsay is a statement,
other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
Explanation: If a witness tries to repeat
what someone else has said, the witness is usually
stopped from doing so by the hearsay rule. Hearsay
is a statement made by someone other than the
witness testifying. Because the statement was
made outside the courtroom, usually a long time
before the trial, it is called an "out-of-court
statement." The hearsay rule also applies
to written statements. The person who made the
statement is referred to as the "declarant."
Because the declarant is not the one testifying
in court under oath, the declarant's statement
is not considered reliable.
Example: Witness testifies in court,
"Harry told me the blue car was speeding."
What Harry said is hearsay because he is not the
one testifying. He is not under oath, cannot be
cross-examined, and his demeanor cannot be assessed
by the judge or jury. Further, the witness repeating
Harry's statement might be distorting or misinterpreting
what Harry actually said. For these reasons, Harry's
statement, as repeated by the witness, is not
reliable and therefore not admissible. The same
is true if Harry's prior written statement was
offered.
Only out-of-court statements which are offered
to prove what is said in the statements are considered
hearsay. For example, a letter which is an out
of court statement is not hearsay if it is offered
to show that the person who wrote the letter was
acquainted with the person who received it. But
if the letter was offered to prove that what was
said in the letter was true, it would be hearsay.
(d) Statements which are not
hearsay -- A statement is not hearsay if:
(1) Prior statement by witness -- the declarant
testifies at the trial or hearing and is subject
to cross examination concerning the statement
and the statement is
(A) inconsistent with the declarant's testimony,
and was given under oath subject to the penalty
of perjury at a trial, hearing, or other proceeding,
or in a deposition or
(B) consistent with the declarant's testimony
and is offered to rebut an express or implied
charge against the declarant of recent fabrication
or improper influence or motive, or
(C) one of identification or a person made after
perceiving the person; or
Explanation: If any witness testifies
at trial, and the testimony is different from
what the witness said previously, the cross-examining
lawyer can bring out the inconsistency. In the
witnesses' statements in the mock trial materials
(considered to be affidavits), prior inconsistent
statements may be found (see Impeachment Rule
607).
(2) Admission by a party-opponent -- The statement
is offered against a party and is (A) the party's
own statement in either an individual or a representative
capacity or (B) a statement of which the party
has manifested an adoption or belief in its truth,
or (C) a statement by a person authorized by the
party to make a statement concerning the subject,
or (D) a statement by the party's agent or servant
concerning a matter within the scope of the agency
or employment, made during the existence of the
relationship, or (E) a statement by a co-conspirator
of a party during the course in furtherance of
the conspiracy.
Explanation: A statement made previously
by a party (either the plaintiff or
defendant) is admissible against that party when
offered by the other side. Admissions may be found
in the plaintiff's or defendant's own witness
statements. They may also be in the form of spoken
statements made to other witnesses.
Rule 802. Hearsay Rule
Hearsay is not admissible, except as provided
by these rules.
Rule 803. Hearsay Exceptions, Availability
of Declarant Immaterial
The following are not excluded by the hearsay
rule, even though the declarant is available as
a witness:
(1) Present sense impression -- A statement describing
or explaining an event or condition made while
the declarant was perceiving the event or condition,
or immediately thereafter.
Example: "As the car drove by Janet
said, 'Wow, that car is really speeding.' "
(2) Excited utterance -- A statement relating
to a startling event or condition made while the
declarant was under the stress of excitement caused
by the event or condition.
Example: A witness testifies, "Mary
came running out of the store and said, 'Carl
has shot Robert!' "
(3) Then existing mental, emotional, or physical
conditions -- A statement of the declarant's then
existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health),
but not including a statement of memory of belief
to prove the fact remembered or believed unless
it relates to the execution, revocation, identification,
or terms of a declarant's will.
Example: A witness testifies, "Mary
told me she was in a lot of pain and extremely
angry at the other driver."
(4) Statements for purposes of medical diagnosis
or treatment -- Statements made for the purpose
of medical diagnosis or treatment.
Rule 805. Hearsay within Hearsay
Hearsay included within hearsay is not excluded
under the hearsay if each part of the combined
statement conforms with an exception to the hearsay
rule provided in these rules.
Example: A police report contains a notation
written by the officer, "Harry told me the
blue car was speeding." The report might
be admissible as a public record but Harry's statement
within the report is hearsay
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