Hearsay Evidence Explained: FRE 801-807 Exceptions & Examples

[00:00:00]Today we're gonna talk about hearsay. We're gonna talk about its meaning, its definition and a whole bunch of other stuff... actually there's a lot on our plate so let's just go ahead and cut straight to the intro *INTRO* Welcome to Law Venture My name's Jarrett Stone. since you're watching this video about objections, I highly recommend that you download this cheat sheet with the 21 most common trial objections. It's super free, it's super helpful. And it has a breakdown of how to make each objection, when to make each objection, and how to respond to each objection. If you want to get it, go in the description; click the link; type in your email address; and then BOOM it'll get sent directly to you.

[00:00:40]I also recommend that you check out this video with the top 10 trial objections that you'll be making in the courtroom. It's super helpful and you want to have these down pat. Okay enough of that, let's talk about hearsay and I want to set expectations just a little bit before diving into a detailed hearsay analysis because this particular video is just going to be a broad overview. Basically a bird's eye view of what all hearsay is and what all hearsay entails. If I were to dive too into the weeds with hearsay and have one super long video, I think I would lose most of y'all. And I truthfully wouldn't even watch the video from beginning to end myself so we're going to take hearsay in bite-sized chunks.

[00:01:21]And in order to keep up with all the videos, don't forget to subscribe, which is down there. Alright, let's start with 801 because Rule 801 defines exactly what hearsay is and in order to make any analysis about hearsay you need to know what it is so let's dive in according to the Federal Rules of Evidence Rule 801 hearsay means a statement that the declarant does not make while testifying at the current trial or hearing and a party offers in evidence to prove the truth of the matter asserted in the statement yeah I know mind-blown a little bit there's a lot going on in that definition fortunately 801 provides a little bit of guidance because it has additional definitions to define the certain key elements within the hearsay definition hopefully that makes sense but we'll break it down to where it does make a little bit more in particular let's look at what a statement is under 801 a statement means a person's oral assertion written assertion or nonverbal conduct if the person intended it as an assertion so given that definition we know that hearsay is going to potentially apply to certain statements whether it was written whether it is oral or nonverbal conduct now nonverbal conduct is a little tricky but something like that if you intended it to be a statement of yes or a confirmation that's a non verbal conduct or if you were to and here's probably the best example click the like button down below that is a non verbal statement that you are enjoying this video now we need to basically unpack the other important element of what hearsay is and that's the definition of a declarant a declarant means the person who made the statement that definition is simple enough and just a side note this is kind of unrelated every time I hear the word declarant it makes me think of michael scott in the office always saying i do declare in that one episode involving a murder investigation i don't know if that comes to mind for anybody else if it does leave that in the comments below alright got off topic there let's get back on topic when it comes to the word declarant there needs to be an important distinction a declarant isn't synonymous and doesn't mean the same exact thing as witness a declarant is more often than not in the hearsay sense somebody who made a statement outside of the witness stand and outside of the courtroom this will be important to remember as we proceed in each one of these aspects of hearsay in particular the purpose behind hearsay but I'm gonna go ahead and hold that back right now because we're still unpacking this definition but just keep in mind that a witness isn't always a declarant but you can also have a witness who is also a declarant if that particular witness is quoting a statement that they declared like Michael Scott outside of the witness stand I think that makes sense I hope it makes sense if it doesn't be sure that maybe ask me a follow-up question in the comments below okay the final element that we need to talk about is the truth of the matter asserted in that hearsay definition now what does that mean and that's kind of a really weird way to phrase any sentence but the truth of the matter asserted simply means that you're offering a sentence of or a statement and you're trying to prove the substance of that particular statement so if I were to offer up a statement that Bob told me today is Cinco DeMayo well if I'm offering it to prove the fact that today is Cinco DeMayo or that particular day was Cinco DeMayo something along those lines and I'm trying to prove using the substance of that sentence the same exact fact that means I'm trying to prove the truth of the matter asserted now on the opposite side what wouldn't be the truth of the matter asserted is if I may be offered the Cinco DeMayo statement that Bob made the declarant then if I offer that for the just pure purpose of showing that I spoke with Bob that particular day then that means I'm not trying to prove that it was Cinco DeMayo I'm just trying to prove that I had a communication and I had a conversation with Bob so in that particular instance it's not being offered for the truth of the matter asserted and in that particular instance that statement by a declarant out-of-court potentially would be non hearsay and that's the second part of 801 801 D goes into greater detail of what non hearsay actually is but there's an important distinction that needs to be made non hearsay is not the same as a hearsay exception this is so critical and so many lawyers get this confused they refer to everything as a hearsay exception non hearsay has never been here say at any point because by definition it's not hearsay that's an important distinction because whenever you make this argument to the judge that means that at no point in time should this have been prevented from being into evidence on the flipside if you have a hearsay exception on its face before you get to the exception that particular statement should not be admitted because it's here say then you have to apply an exception so you have a harder road whenever you're arguing that it's a hearsay exception and it's just it's just an unreasonably harder road if you're arguing it's an exception when it's reality it's non hearsay so be sure you have that correct be sure is crystal clear to the judge that if it's non hearsay it was never here say to begin with so many lawyers like I said get this confused and it's easy to get confused but let's go ahead and just move on to 802 and a totem makes it a little bit clearer about why we're talking about hearsay 802 states that hearsay is not admissible unless any of the following provides otherwise a federal statute these rules or other rules prescribed by the Supreme Court that definition shouldn't come to a surprise to you given everything we've been talking about when it comes to keeping statements out of evidence but I hope you have a certain question in your mind which is why do we have this rule against hearsay what is it all about well truthfully it's not to make your life miserable there's actually a real purpose behind it but before answering that we need to talk about cross-examination the purpose of cross-examination is to stress test the other side's witnesses and the other side's position that way the jury can determine whether or not the witness and the other side's position is credible and so this allows the opposing side to Darren cross examination poke holes and if the witness survives the cross-examination and the jury thinks the witness did a great job and most likely that witness will be deemed credible now the issue in the complication occurs with hearsay let's say I'm cross-examining a witness and at some point during that cross-examination the witness decides to quote a declarant and is using this statement or this quote to prove the truth of the matter asserted let's go ahead and rule out that this is not non hearsay so it is hearsay double- there and the problem I have at this point the wrench in my plan with my process examination is that I can't cross-examine the declarant because the declarant isn't on the stand so I can't really stress test the credibility of the declarant and credibility of the statement made by the declarant I just had to clear out a whole lot and that's why we have the hearsay objection but here's a little bit of a caveat the hearsay objection like we've talked about has exceptions so let's talk about those rule 803 and 804 are the exceptions to hearsay there's an important distinction between the two to wear and I'll just gloss over this because this is just a highlight video basically 803 is going to apply in all cases essentially when it comes to the exceptions 804 is only going to apply in certain situations mainly whenever the declarant is unavailable to be a witness for certain reasons so be sure to check those out I'll have videos that explain this a little bit in greater detail but there's one important concept that I want you to understand what these exceptions generally speaking the hearsay exceptions assume that the facts that apply to each exception is made because it's true and to make that a little bit more concrete let's go ahead and use an example under 803 there's excited utterance and in that situation if something shocking happens and in the moment a declarant says something and doesn't have time to really think about it just reacts by saying something that statement is essentially assumed to be truthful because under the excited utterance exception the declarant doesn't have enough time to really formulate that statement and be strategic to where okay maybe this statement may be used in a court of law so I want to say it exactly that's gonna be most beneficial to me or my friend or to whoever but with excited utterance in particular it assumes it's true because somebody didn't really have time in the moment to think that far ahead and that's essentially the same principle not so much as like excited utterance but the same principle of honesty and truthfulness with most of these exceptions so be sure to unpack it be sure to go through each one and see if certain statements apply or don't apply and remember there's a distinction between non hearsay and exceptions you always need to keep in mind that even though something may be non hearsay or even though something may satisfy a hearsay exception it's always going to have to satisfy rule 403 before it's admitted so if you're trying to get a statement in keep in mind you have to overcome rule 403 or if you're trying to object remember always have that catch-all 403 objection if you are needing more material about four or three be sure to watch this video above that I release it goes into detail and really unpacks for a three for you alright let's move on to the next aspect of the hearsay objection sorry if my eyes are watering I just sneezed off-camera anyways we're not gonna spend too much time on 805 because it's really not that complicated it basically says that you can have hearsay within here say if that's the case and you're going to need to unpack each level of hearsay with an exception and it's a lot like Inception to where you just keep going one layer deep but the point of it is let's say you have a document with statements on it writing that's potentially hearsay and within that document if the person quotes somebody else if there's a declarant then you could have that multi level of hearsay so you're gonna have to find an exception for the first one an exception for the second one and then again you're gonna have to satisfy rule 4 of 3 okay moving on to the next one 806 806 is relatively short because it allows you to attack or support the credibility of a declarant and this kind of brings us full circle with the whole point of cross-examination which is stress testing the credibility of a witness but in this particular case you're either stress testing or supporting the credibility of a declarant who isn't a witness all right let's just move on to 807 this one's also short and simple and it really appeals to a sense of fairness and this is kind of the catch-all for the hearsay exception it's not the four or three the ultimate catch-all but it's the last and when it comes to allowing a hearsay statement to come in and truthfully I don't know how often people are successful making this argument but it's something you need to have in your back pocket just in case be sure to check out the elements be sure to satisfy all the elements and be sure to note that there's a notice requirement that you need to satisfy as well if you make a good argument fingers crossed hopefully the judge will let the statement in alright if you have any questions about this be sure to leave those in the comments below if you're still watching at this point don't forget to give this video a thumbs up hey the subscribe button it's over there it's it's right there right there alright I'll see y'all in the next video you