Hearsay vs Non Hearsay: Why the Purpose Decides

What is the difference between hearsay and nonhearsay?

Under the Federal Rules of Evidence, an out-of-court statement is hearsay only when a party offers it "to prove the truth of the matter asserted in the statement," according to Rule 801(c). The same sentence can be hearsay for one purpose and nonhearsay for another. The deciding question is not "is this secondhand?" but "what is this statement being offered to prove?" This is general legal education, not legal advice, and state rules vary.

Why is "secondhand" the wrong test?

The federal definition is narrower than "anything repeated." It turns on three parts: the statement, the declarant, and the purpose.

A statement, under Rule 801(a), is "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." A nod given in answer to a question can qualify; conduct the person did not intend as an assertion falls outside that wording.

The declarant, under Rule 801(b), "means the person who made the statement." That is the original speaker or writer, not the witness who later repeats the words in court.

The purpose is set by Rule 801(c). Hearsay is a statement that the declarant "does not make while testifying at the current trial or hearing" and that a party "offers in evidence to prove the truth of the matter asserted in the statement."

Two consequences follow, and the second is the one people skip. First, a witness repeating someone else's words is not automatically offering hearsay; it depends on why the words are offered. Second, a witness's own earlier words can be hearsay, because the test is whether the statement was made while testifying at the current trial or hearing.

What happens when a statement is not offered for its truth?

If the point of offering a statement does not depend on it being true, the hearsay definition is not met. The Advisory Committee Notes to Rule 801 put it directly: "If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay."

The same notes describe one major category this removes from hearsay: "verbal acts" and "verbal parts of an act," in which "the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights." Words that form a contract, for example, matter because they were said, not because they describe something true.

A self-check, offered as this site's own reading aid rather than a legal rule: assume the declarant was wrong. If the statement still proves its point, it is probably not offered for its truth. If it becomes useless, its truth is doing the work.

A reading exercise: one fictional federal case, four statements

Everything in this exercise is invented for teaching. Shop A, a small print shop, sues Supplier B, a paper wholesaler, in a federal court for breach of contract. Shop A says its paper arrived three weeks late and that it lost a seasonal order as a result.

Statement 1: "We accept your order at the quoted price."

Supplier B's sales representative wrote this in an email to Shop A. Shop A offers it to show that a contract was formed. The words are the acceptance itself; their legal effect does not depend on whether they describe some fact accurately. That fits the verbal-acts category described in the Advisory Committee Notes, so for this purpose the email is not hearsay.

Statement 2: "Supplier B's warehouse flooded last week."

A delivery driver said this to Shop A's manager; the driver is the declarant. Offered to prove the warehouse actually flooded, the statement is offered for its truth and is hearsay. Offered only to explain why the manager began calling other wholesalers, the point is what the manager heard and did, which holds even if the driver was wrong. A court decides whether that second purpose is genuine and relevant; a stated purpose that is really a route to the statement's truth does not change the analysis.

Statement 3: "Our shipment to Shop A went out late."

Supplier B's operations manager wrote this in an internal email produced during the case. Shop A offers it for exactly its truth: the shipment was late. On the general definition, that looks like hearsay. But Rule 801(d)(2) treats a statement offered against an opposing party as not hearsay if it fits one of five categories, including a statement that "was made by the party's agent or employee on a matter within the scope of that relationship." Whether this email fits is for the court to decide, but it shows that "offered for its truth" and "hearsay" are not always the same thing.

Statement 4: Supplier B's delivery log

Shop A offers a log entry recording the ship date to prove the date. Offered for its truth, the entry is hearsay under Rule 801(c), but it may still be admitted if an exception applies. Rule 803 lists "Records of a Regularly Conducted Activity" among its exceptions, subject to the conditions that rule sets out. The log does not stop being hearsay; the rule simply does not exclude it if those conditions are met.

Is an opposing party's statement an exception or not hearsay at all?

Under the Federal Rules, it is defined as not hearsay. That is the line between a definitional exclusion and an exception.

Rule 801(d) opens with: "A statement that meets the following conditions is not hearsay." It covers two groups. The first, in Rule 801(d)(1), applies when "The declarant testifies and is subject to cross-examination about a prior statement," and the statement falls within listed types, such as one that "identifies a person as someone the declarant perceived earlier." The second, Rule 801(d)(2), covers an opposing party's statement.

The Advisory Committee Notes say that "Admissions by a party-opponent are excluded from the category of hearsay." The 2011 restyling note adds that these statements "are no longer referred to as 'admissions'" in the subdivision title, and that "No change in application of the exclusion is intended."

Exceptions work differently. They accept that a statement is hearsay and then allow it anyway. Rule 802 states that "Hearsay is not admissible unless any of the following provides otherwise," naming a federal statute, the rules themselves, or other rules prescribed by the Supreme Court. Rule 803 applies "regardless of whether the declarant is available as a witness," while Rule 804 is titled "Hearsay Exceptions; Declarant Unavailable" and includes "Former Testimony" and "Statement Against Interest."

In short: a nonhearsay purpose and the Rule 801(d) exclusions mean the hearsay rule never applies; an exception means the rule applies and is overcome.

Does "not hearsay" mean the statement is admitted?

No. Clearing the hearsay rule answers one question among several.

• Relevance and unfair prejudice. Under Rule 403, a court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of" unfair prejudice, confusing the issues, misleading the jury, and other listed concerns.
• Limited purpose. When evidence is admissible for one purpose but not another, Rule 105 says "the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly."
• Layered statements. Under Rule 805, hearsay within hearsay is not excluded "if each part of the combined statements conforms with an exception to the rule." Each layer needs its own answer.
• Criminal cases. The Sixth Amendment gives the accused the right "to be confronted with the witnesses against him," which can raise questions separate from the evidence rules.
• Type of proceeding. Rule 1101(d) says the rules, except those on privilege, do not apply to certain proceedings, including "grand-jury proceedings" and "sentencing."

State courts follow their own evidence codes, which may define hearsay, exclusions and exceptions differently from the federal rules. Confirm the local rule before relying on any of the above.

How can you use this before speaking with a lawyer?

The United States Courts overview describes the Federal Rules of Evidence as governing "the admission or exclusion of evidence in most proceedings in the United States courts." Reading them is useful preparation; applying them to a real dispute is a lawyer's job.

For a statement that matters in your own situation, note who the declarant is, what the statement asserts, and what fact it is meant to prove. Those notes make a conversation with a licensed attorney more precise.

Evidence questions also sit inside the question of who must prove what; see legal burden vs evidential burden and burden of proof in civil vs. criminal cases. Related explainers are collected in Evidence and Proof.

For any real case, objection, or deadline, consult a licensed attorney in the relevant jurisdiction.

Sources

• Federal Rules of Evidence, Rule 801: Definitions That Apply to This Article; Exclusions from Hearsay (Cornell LII)
• Federal Rules of Evidence, Rule 802: The Rule Against Hearsay (Cornell LII)
• Federal Rules of Evidence, Rule 803: Exceptions to the Rule Against Hearsay (Cornell LII)
• Federal Rules of Evidence, Rule 804: Hearsay Exceptions; Declarant Unavailable (Cornell LII)
• Federal Rules of Evidence, Rule 805: Hearsay Within Hearsay (Cornell LII)
• Federal Rules of Evidence, Rule 403 (Cornell LII)
• Federal Rules of Evidence, Rule 105 (Cornell LII)
• Federal Rules of Evidence, Rule 1101: Applicability of the Rules (Cornell LII)
• U.S. Constitution, Sixth Amendment (Cornell LII)
• Federal Rules of Evidence overview (United States Courts)