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The Fool-Proof Hearsay Test

Many hearsay objections can be summarily resolved by first applying the definition of hearsay to the out-of-court statement.  On close examination, in many cases, statements that appear to be hearsay actually are not. Making that initial determination involves three steps:

Step One—First Determine:

  1. Is the statement being offered actually “hearsay” and therefore not admissible unless it falls under a statutory exception or a recognized hearsay exception? See M.S.595.02 subd. 3; 260C.165 or Rule of Evid. 803, 804, 807, etc), or
  2. Is the statement being offered “non-hearsay” and therefore admissible as long as it is “relevant” (Rule of Evid. 401-402) and not “unduly prejudicial” (Rule of Evid. 403)?

Step Two—Definition of Hearsay: 

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to “prove the truth of the matter asserted.”  Rule of Evid. 801 (c). If the statement is offered for some other relevant purpose such as to prove knowledge, notice or the declarant’s state of mind, it is not hearsay. For example: If a party offers into evidence a child’s out-of-court statement that “I saw daddy hit mommy in the face,” does such a statement constitute “hearsay”?

  1. Non-Hearsay: If the child’s out-of-court statement is not being offered to prove that daddy actually hit mommy, but instead is being offered to establish the child’s “state of mind” (i.e., the child’s belief, knowledge or perception of mom and dad, etc.) then the statement is not hearsay. In many family or juvenile cases the non-hearsay statement is relevant because it doesn’t matter if the statement is true or not, the mere fact the child made the statement is relevant to the “best interest of the child” analysis. “Non-hearsay” statements are admissible as long as they are “relevant” and not “unduly prejudicial.”
  2. Hearsay: If the statement is being offered to prove that the assertion is true (i.e., that daddy actually hit mommy) then the statement is hearsay. Hearsay statements are not admissible unless a recognized hearsay exception applies pursuant to statute or Rule of Evidence 803, 804 or 807.

Step Three—Apply the Test: 

  1. Ask whether the relevant purpose for offering the out-of-court statement is its truth; if the answer to that question is “yes,” the out-of-court statement is hearsay.
  2. If the answer to the question is not clearly “yes,” ask this next question:
  3. Must the content of the out-of-court statement be believed in order to be relevant? If yes, the statement is hearsay. If no, the statement is non-hearsay.

Hon. Alan F. Pendleton

10th Judicial District



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