significance, sometimes called “verbal acts,” are not considered hearsay. They assert legal duties
and liabilities, not facts. For example:
a) The words constituting slander or libel.
b) The words in a contract.
c) Words by which a conspiracy was furthered.
d) Statements that help establish probable cause to make an arrest.
e) A felony judgment entered in a criminal case.
C. The Statement is Not Being Offered to Prove the Truth of the Facts Asserted.
(1) In general. Even if an utterance contains a factual assertion, it is only hearsay if the
evidence is offered to prove the truth of that factual assertion. You can therefore respond to a
hearsay objection by arguing that the statement helps prove a material fact other than the fact
asserted in the statement. The difficulty is articulating exactly what alternative relevant issue a
statement helps prove. You can’t just mutter "Not for its truth." Common examples:
a) Impeachment. A prior inconsistent statement is not hearsay if offered to impeach a
witness by showing he can’t keep his story straight. For all we know, both statements
are false. A statement giving a reason the witness is hostile toward a party is not hearsay
if we don’t care if it’s true but only that it shows the declarant's bias. We’re pretty sure
someone doesn’t like Obama is they claim he is Kenyan Muslim, regardless of whether
the facts are true or false.
b) Rehabilitation. If a prior inconsistent statement was used to impeach a witness,
other pertinent parts of it may be used on redirect for the purpose of rehabilitation. The
original testimony was offered for its truth, the cross-examination made credibility an
issue, and the consistent statements are offered to show credibility.
c) State of mind. If a person's state of mind is relevant, statements by other people that
may have affected it are admissible. For example, if a defendant pleads self defense, a
threatening statement by the victim is relevant to show his reasonable belief in the need
to use force, even if the threat was false.
d) Insanity. When insanity or mental competence is an issue, statements that
demonstrate rational or irrational thought are relevant to the question of mental state. If
a person constantly repeats the statement, “I am the keymaster” while wearing a
colander oj his head, it tells us more about his sanity that whether he is in fact a
keymaster.
e) Identification. A document whose content is relevant circumstantial evidence of
identity is not hearsay. For example, a note to the defendant from his wife saying “The
school called and Jamie’s in trouble again,” found inside a briefcase containing drugs is
relevant to prove the defendant possessed the case.
f) Notice and knowledge. A statement describing a problem may be admissible to show
a defendant had notice of unsafe conditions. For example, a work order dated a year
before an accident describing broken pavement may be admissible not to prove the
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