Hearsay through the eyes of our law student

D.C. criminal defense attorney

When it comes to hearsay, there is only one phrase you need to keep in mind: Hearsay is an out-of-court assertion offered for the truth. If it doesn’t satisfy that definition, it is not hearsay.

“Present Sense Impression” in Sims v. United States

D.C. criminal defense lawyer

In addition to contemporaneity and spontaneity, the proponent of a “present sense impression” hearsay exception must prove that the declarant personally perceived the event described.

Re-cross examination in Green v. United States

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If the government introduces new evidence during re-direct examination, the defense has a constitutional right to question the witness about that new evidence.

The difference between a leading and non-leading question

“What is your name?”  That is a non-leading question.  Compare that with “Your name is John Smith, isn’t it?” That would be leading.  It basically tells the witness what his answer should be. 

Can a witness’s own statement be hearsay?

Yes.  If a witness testifying at trial made a prior statement that a party would like to introduce and that statement was intended as an assertion and is now being offered as substantive evidence to prove the truth of the matter, then the statement would still be hearsay.  It is immaterial whether or not the witness is present in court to be cross-examined with respect to the earlier statement.

Can hearsay be used to impeach?

D.C. criminal defense lawyer

Whether or not an out-of-court statement is hearsay depends on the purpose for which it is offered.  If it is offered to prove the truth of the matter, it is hearsay.  If offered only to impeach (i.e., discredit) a witness, then it is by definition not hearsay. 

Are depositions hearsay?

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A deposition is a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for discovery purposes or for later use in court. As such, it would appear to be quintessential hearsay (i.e., an out-of-court declaration that is asserted for the truth of the matter) and would only be admissible if (1) it were offered for a non-hearsay purpose or (2) it satisfied the “prior recorded testimony” or some other exception to the hearsay rule. 

Is a receipt hearsay?

Whether a receipt constitutes hearsay would depend on the purpose for which it is being offered.  If it is being used to prove the value of an item, it would be hearsay.

Can Silence Be Hearsay?

There might circumstances in which a person’s silence could be interpreted to communicate something.  For example, silence in response to the traditional challenge “speak now or forever hold your peace” during a wedding ceremony could be interpreted to communicate assent. If offered to prove that the “declarant” endorsed the union, it could constitute hearsay, thereby requiring the proponent of the evidence to introduce it through an exception to the hearsay rule. 

Can a Photograph be Hearsay?

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Conceivably, yes.  Hearsay is as an out-of-court assertion that is offered to prove the truth of the matter asserted. If the evidence in question satisfies all three conditions (that is, it is out-of-court, it is an assertion, and it is offered for its truth), then it would be hearsay and could only be admitted through an exception to the hearsay rule.