These Are a Few of My Favorite Things (Hearsay Principles and Exceptions): Principles

June 14, 2016
By Hanging Out with Carl Gunn


  • Remember an out-of-court statement is hearsay only if it’s offered for the truth of the matter asserted; if you offer it simply to show what your client believed, it’s not being offered for the truth of the matter asserted and so isn’t hearsay.
  • Remember also there can be hearsay within hearsay; if that’s the case, then each layer of hearsay has to satisfy some exception to the hearsay rule.
  • Finally, remember you can impeach a hearsay declarant just as if the declarant had testified as a live witness, so watch for that opportunity.



Having hit a bit of a lull in new ideas and/or news to offer you, I thought I’d post a little on some of my favorite hearsay issues; hence the post’s title’s play on the words of the “Sound of Music” tune, “These Are a Few of My Favorite Things.”  Much or all of what follows will be old hat and established knowledge for many of you, but it could be a little refresher and maybe even provide a little new information for some.  Alternatively, it may point you to the authority for rules you already generally know.

Before I get to some of the actual exceptions, I thought I’d touch on several general principles.  First, there’s a nuance about whether something is even hearsay that I’ve found district judges and prosecutors occasionally fail to recognize, at least when the evidence is offered by the defense.  Consider a fraud case in which your defense is that your client honestly believed what he was saying because he was lied to by someone else, or a drug courier case in which your client didn’t know he was carrying drugs because he was lied to about what was in the suitcase.  You offer evidence of what your client was told not to prove what he was told was true – in fact, you admit he was lied to.  You offer the evidence to establish his state of mind, namely, his lack of knowledge because he was fooled by the lies.  This evidence isn’t excluded by the hearsay rule because an out-of-court statement is defined as “hearsay” only if the party offers it “to prove the truth of the matter asserted in the statement.”  Fed. R. Evid. 801(c)(2).  As articulated by the Central District’s Judge Carter in a case in which the government sought to offer such evidence:

The statements that Castillo and Jacobo are wanted by law enforcement and that Clarence has the guns are assertions.  However, they are not offered for the truth of the matter asserted.  The Government is not trying to prove that Castillo and Jacobo were wanted by law enforcement.  The statement is relevant to show Arevalo’s belief that they were wanted by law enforcement, his association with them, and thus his participation in the conspiracy. . . . Further, that they were wanted by law enforcement is not in dispute and is already obvious to     all . . . .  Similarly, it is not in dispute that the guns were at Clarence’s house, and thus Arevalo’s statement . . . that Clarence has the guns is not being offered for the truth of the matter asserted.  Instead, it is offered to show his knowledge of the guns and his attempts to cover up the crime.

United States v. Fernandez, 172 F. Supp. 2d 1265, 1275-76 (C.D. Cal. 2001).  Similarly, in a case considering statements offered by a defendant, the Second Circuit explained:

Song’s most significant argument made on appeal [is] that the District Court erred when it precluded Song from testifying as to certain statements made to him by the “manager” and Mrs. Kim, who allegedly had hired Song to serve as a tour guide after he had responded to an advertisement on a Korean language website seeking “drivers” for an unspecified purpose. . . . [W]e agree that much or all of the excluded testimony was not in fact hearsay, inasmuch as the challenged statements were not offered for the truth of the matters asserted, but rather, to demonstrate the motivation behind Song’s actions, which were taken in response to the assertedly false statements made by the “manager” and Mrs. Kim.

United States v. Song, 436 F.3d 137, 139 (2d Cir. 2006) (emphasis in original).

There’s also a couple of general principles about hearsay to remember that I think of as being on the back end.  One is that there can be hearsay within hearsay, which is an issue specifically addressed in Rule 805.  As articulated in the rule, “each part of the combined statements [must] conform[ ] with an exception to the [hearsay] rule.”  As expressed in case law, “each layer of hearsay must satisfy an exception to the hearsay rule.”  Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1045 (9th Cir. 1999).  This issue of layers of hearsay most often arises in business records or public records.  See, e.g., United States v. Morales, 720 F.3d 1194, 1201-02 (9th Cir. 2013); Sana, 181 F.3d at 1045-46.

Then a second general principle is that hearsay declarants can be impeached just like live witnesses.  This right is created by Rule 806, which provides that “the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”  For a more in-depth discussion of this principle and some ideas on how to use it, see the prior post titled, “Another Possibly Overlooked Evidence Rule: Impeaching Those Not Present,” in the October 2014 link at the right.

In the next post, I’ll touch on some nuances of the actual hearsay exceptions that I find interesting and/or sometimes overlooked.