Is this hearsay?

Question

In this situation, the attorney is attempting to find out on direct exam. whether the witness had a conversation with the defendant, who is being sued for securities fraud, about business matters:

Q. Did you have any conversations about business with Defendant that day?

A. Yes. That morning she called me at home and told me that we’d signed two business deals and that we were hiring a new accountant.

I’m wondering whether everything after the “Yes” can be stricken as hearsay. It seems like this statement is being offered for its truth, i.e., that they did, in fact, talk about business.

Answer 1

If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals.

If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed.

In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft.

Answer 2

The answer is no, it is not hearsay. I am writing this answer because my analysis is different than the previous posts.

Looking at the statements, the part in bold is where there is a potential hearsay problem:

A. Yes. That morning she called me at home and told me that we’d signed two business deals and that we were hiring a new accountant.

Here the is witness testifying about a statement that the defendant made to him/her at a previous date. This state normally would be hearsay, but isn't in this instance because the witness was testifying about a statement made by the defendant.

Using the Federal Rules of Evidence as a guide, the applicable rule is Fed. R. Evid. 801.

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

So, looking at the potential hearsay statement, the Declarant, is the defendant because he is the person that made the statement that the witness is testifying about about. Additionally, it meets the definition of hearsay because the Declarant (the defendant) was not currently testifying and it is presumably being offered for the truth of the matter asserted.

However, the statement of a defendant is generaly exempted from the definition of hearsay when a plaintiff is using it against the defendant under Fed. R. Evid. 801(d)(2)(a).

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: . . .

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

Here, the statement was made by an opposing party (the defendant) in an individual capacity because he said it himself, and is being offered by the plaintiff. Therefore, it is exempted from the definition from hearsay.

Answer 3

I'm making this an answer only because it's too long to put in a comment. Mr_V's answer is correct IMO. The reason why analysis is difficult is because the above testimony is a statement, which contains a statement (see this question). The person testifying is making a statement, and if it had been a statement about what s/he saw, nobody would think it is hearsay. But it is a statement about what someone else said, which gets you in the hearsay ballpark. But: FRE 801(d)(2)(a) allows it.

Answer 4

First, the question wouldn't likely be phrased in this way during Direct Examination for an entirely different objectional reason (leading the witness. Unless the attorney has requested and recieved permission from the judge, to treat the witness as hostile, they cannot ask questions with a yes-or-no answer. On Cross, the witness is always assumed to be hostile, so leading the witness is fine).

Secondly, while there is a specific explanation in that defendent's statements are not hearsay, a broader exception is that hearsay only occurs if the person originally making the remarks cannot be called as a witness by the council asking the question. Typically this means that one can testify to a "dying declaration" of another (Bill said, "Tom shot me" before he died of a gunshot wound to the chest.) but since the prosecution cannot legally call the defendant as you cannot be compelled to testify against yourself (You have the right to remain silent, anything you say can and will be used against you in a court of law.) the defendant's own statements can be used against the defendant.

In fact, the rules of hearsay are such that if you're being arrested for killing two law officers and make the statement "I shot the sheriff, but I did not shoot the deputy" then it is not hearsay for the arresting officer to testify to the admission that the defendant confessed that he shot the Sheriff, but it is hearsay if the arresting officer testifies that the defendant said the defendant said he did not shoot the deputy.

This is because another exception to hearsay is "Statements against interest" which are statements that would serve no purpose other than to show evidence of guilt of a crime. Thus Bob's admission to the murder of the Sheriff is not in his interest, and can be induced by the law officer, but his denial of murdering the Deputy is in Bob's interest and must be induced by Bob's defense.

If this is Cross (leading questions are allowed) then you can only ask the witness about matters related to what he said during direct examination. This means that the phone conversation between the defendant and the witness was previously induced into evidence and or that the Defendent is only now inducing the phone conversation (The defense lawyer is speaking on behalf of the actual defendant) as it might impeach (no... not that impeachment. Here it's lawyer words for "make the witness look unreliable" and not "remove the witness from political office") the witness. If the witness in direct said he never discussed buisness that day, when in fact they did, then it is not in the witnesses interest so it's not hearsay... and the defense is inducing this as it is in his interest to make the witness on the stand look like he doesn't recall the events he presented at best, and at worst that the witness has lied under oath (committed an actual crime).

Answer 5

We don't yet have enough information to say whether this is hearsay or whether it is admissible. Even among lawyers, a hearsay analysis is tricky, so I'm not surprised you're getting such loopy and inconsistent answers here.

A proper hearsay analysis moves in three steps:

Step 1: Is it an out-of-court statement offered to prove the truth of the matter asserted?
We have a roughly uniform definition of hearsay in courts across the United States. From Federal Rule of Evidence 801:

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

So the first question we have to ask is why the statement is being offered. If the testimony is meant to prove merely that the witness and the defendant knew each other, or that the phones were working that day, or something eles, then the statement is not hearsay and it should come in. But if it's meant to prove that the defendant had, in fact, signed two deals and hired a new accountant, then you're within the general definition of hearsay and have to move on to Step 2.

Step 2: Is it the statement of an opposing party or the witness's own prior statement?
If the statement is being offered to prove the truth of the matter asserted, then you move on to see whether it fits into an exclusion from the definition of hearsay. The relevant question here is which attorney is directing the witness. If the plaintiff's attorney is asking the questions, the defendant's statement is almost certainly going to come in as "An Opposing Party’s Statement":

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

But if the defense attorney is trying to bring out the witness's recollections of his own client's prior statements, you're still within the definition of hearsay, and you have to move on to Step 3.

Step 3: Does it fit within an exception to the rule against hearsay?
Even if a statement is hearsay, it may be admissible if it falls within one of many exceptions to the rule against hearsay. The first two listed in Rule 803 are possible fits:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Was the phone call made just as the deals closed or just as the defendant signed the accountant? If so, the statemnet can likely come in as a present-sense impression.

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Were the two business deals the defendant closed particularly large or otherwise of such a character that they could be described as "startling" or "exciting"? Was the conversation had while the defendant was still excited about them? If so, then the statement may be admissible.

Answer 6

Hearsay¹ is:

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

Confused? Fortunately, there are some examples:

1. D is the defendant in a sexual assault trial. W has made a statement to the police that X told W that X had seen D leave a night club with the victim shortly before the sexual assault is alleged to have occurred. Unless an exception to the hearsay rule applies, evidence of what X told W cannot be given at the trial.

2. P had told W that the handbrake on W's car did not work. Unless an exception to the hearsay rule applies, evidence of that statement cannot be given by P, W or anyone else to prove that the handbrake was defective.

3. W had bought a video cassette recorder and written down its serial number on a document. Unless an exception to the hearsay rule applies, the document is inadmissible to prove that a video cassette recorder later found in D's possession was the video cassette recorder bought by W.

The fact that the defendant made the representation to the witness is not hearsay. However, it is evidence that it was said, it is not evidence that "we’d signed two business deals and that we were hiring a new accountant". If the intention of the evidence is to prove those facts its inadmissible hearsay - if its intention is to prove that a conversation took place and/or that these matters were discussed (without inference as to the truth of what the defendant said) then its not hearsay (this is the non-hearsay purpose exemption).

Further, if the defendant is unavailable to testify (e.g. they are dead), the evidence is may be admissible under certain circumstances.

In interlocutory proceedings, if the witness' party adduces evidence of the source (the defendant in this statement), it is admissible. So, the inference could be drawn that the statement was true if the applicant was seeking an injunction for example.

Finally, if the statement is an admission (for example, the point of the case was that the defendant was denying one or both of the assertions made), then an exemption to the hearsay rule applies.

¹ Definition from the Evidence Act 1995 (NSW). Each jurisdiction is slightly different but this is a codification of the historic common law rule.

Answer 7

Fed. R. Evid. 801:

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

You have:

That morning she called me at home and told me that we’d signed two business deals and that we were hiring a new accountant.

Was that statement offered in evidence to prove "we’d signed two business deals and that we were hiring a new accountant"?

Probably not. It is being offered to prove that the conversation took place.

Even the judge were to sustain a hearsay objection, there is a myriad of ways to get the same statement admitted.

E.g. "How do you remember that the conversation took place?" "Why did you believe you had hired a new accountant?"