Nonhearsay vs Not Hearsay

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DaydreamBeliever
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Nonhearsay vs Not Hearsay

Postby DaydreamBeliever » Wed Apr 17, 2013 8:36 pm

Can someone please explain the difference between nonhearsay and not hearsay.

I have a question on a practice test that asks


Defamation action by P against D. To prove that D uttered the defamatory remarks, P calls W, who testifies that she was at a PTA meeting when D stood up and called P a "pedophile."


Hearsay


Not Hearsay


Nonhearsay.

I thought they were the same thing but am now confused. Can someone please explain the difference and the logical process to determine this difference?

Thanks!
DB

adonai
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Re: Nonhearsay vs Not Hearsay

Postby adonai » Wed Apr 17, 2013 9:02 pm

Something that is "not hearsay" is exactly that. The evidence being offered is not an out of court statement offered to prove the truth of the matter asserted.

Nonhearsay is essentially exceptions to the hearsay rule, but which are in their own category for some reason that I don't remember (it wasn't really important, but the FRE divides it like that for some reason). These include admissions of party opponent, legally operative words, words offered to prove effect on listener, inconsistent statements offered for impeachment purposes, prior consistent/inconsistent statements, etc.

In your question, it seems the prof. is trying to test you on whether the hearsay exception (if any) falls into the hearsay exception category or nonhearsay category (if that makes any sense?)

DaydreamBeliever
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Re: Nonhearsay vs Not Hearsay

Postby DaydreamBeliever » Wed Apr 17, 2013 9:14 pm

Okay,

I think I understand what you are saying.

This is not being offered for its truth (to prove D uttered the defamatory statement) but rather that W was present at a PTA meeting when D called P a pedophile, therefore nonhearsay?

Also with nonhearsay. You are saying that it is hearsay (meaning it meets the definition under 801) however, it falls under the exceptions found in 801 meanwhile "not hearsay" doesn't even meet the 801 definition of hearsay, right?

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Mike12188
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Re: Nonhearsay vs Not Hearsay

Postby Mike12188 » Wed Apr 17, 2013 9:21 pm

DaydreamBeliever wrote:Okay,

I think I understand what you are saying.

This is not being offered for its truth (to prove D uttered the defamatory statement) but rather that W was present at a PTA meeting when D called P a pedophile, therefore nonhearsay?

No. It is not being offered to prove that he is a pedophile rather the current witness is testifying that he called him a pedophile regardless of whether it was true or not. The truth doesn't matter for defamation purposes just the fact that he said it. Here you don't have the trustworthiness problem where the declarant could have been mistaken or joking, you simply having a witness testifying as to what he heard and not that it was true.

DaydreamBeliever
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Re: Nonhearsay vs Not Hearsay

Postby DaydreamBeliever » Wed Apr 17, 2013 9:27 pm

Mike12188 wrote:
DaydreamBeliever wrote:Okay,

I think I understand what you are saying.

This is not being offered for its truth (to prove D uttered the defamatory statement) but rather that W was present at a PTA meeting when D called P a pedophile, therefore nonhearsay?

No. It is not being offered to prove that he is a pedophile rather the current witness is testifying that he called him a pedophile regardless of whether it was true or not. The truth doesn't matter for defamation purposes just the fact that he said it. Here you don't have the trustworthiness problem where the declarant could have been mistaken or joking, you simply having a witness testifying as to what he heard and not that it was true.



Ahhh okay. I understand what you are saying but is this nonhearsay or "not hearsay" and what exactly are the differences?

I'm confused because if it isn't being offered for its truth, then it can't be hearsay, correct?

adonai
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Re: Nonhearsay vs Not Hearsay

Postby adonai » Wed Apr 17, 2013 9:29 pm

Nonhearsay is not hearsay in the sense that even though it is an out of court statement, it is not offered to prove its truth. For example, when B hears from A that C wants to kill B, B offers this out of court statement to prove that it induced fear in him. B is not offering it to prove that C wants to kill him. This is not hearsay because B is not trying to prove the truth of that statement. B is just offering the out of court statement to prove that he was scared for his life. Nonhearsay functionally acts as a hearsay exception, but it isn't a hearsay exception because it is not hearsay. It is just a semantic distinction.

And yes, not hearsay is not hearsay because it doesn't even meet the FRE rule definition for hearsay. It isn't an exception or anything like that. Not hearsay means "it isn't hearsay as defined in FRE 801." An apple is not an orange.
Last edited by adonai on Wed Apr 17, 2013 9:46 pm, edited 1 time in total.

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Mike12188
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Re: Nonhearsay vs Not Hearsay

Postby Mike12188 » Wed Apr 17, 2013 9:46 pm

adonai wrote:If that one line is all there is to the question, I would say it is hearsay. P is offering W's out of court statement ("I heard D call P a pedo") for the truth of the matter asserted (to prove D uttered the defamatory remark "pedo" towards P).


No way that is hearsay. There is no risk there. The person testifying is subject to cross-examination - she is not trying to prove that what D said is true or that P is actually a pedophile, just the fact that he said it. Of course the witness could be lying about the whole incident but that is what cross-examination is for. How else would you get this in? By requiring D to get on the stand and admitting to it?

As for non-hearsay v. not hearsay. I hadn't thought abou this until now but what I'm guessing is that non-hearsay is a statement that doesn't fit the definition of hearsay - like this one that is not being used "to prove the truth of the matter asserted." I think "Not hearsay" is limited to 801(d) "Statements that are Not Hearsay" which includes Prior Statements and Opposing Party's Statement.

adonai
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Re: Nonhearsay vs Not Hearsay

Postby adonai » Wed Apr 17, 2013 9:47 pm

Mike12188 wrote:
adonai wrote:If that one line is all there is to the question, I would say it is hearsay. P is offering W's out of court statement ("I heard D call P a pedo") for the truth of the matter asserted (to prove D uttered the defamatory remark "pedo" towards P).


No way that is hearsay. There is no risk there. The person testifying is subject to cross-examination - she is not trying to prove that what D said is true or that P is actually a pedophile, just the fact that he said it. Of course the witness could be lying about the whole incident but that is what cross-examination is for. How else would you get this in? By requiring D to get on the stand and admitting to it?

I thought about it again and I made a mistake and edited my response.

sidhesadie
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Re: Nonhearsay vs Not Hearsay

Postby sidhesadie » Wed Apr 17, 2013 10:08 pm

This is easy to get tripped up on, but just remember that "the matter asserted" is the matter asserted in the OUT OF COURT statement.

Here, "the matter asserted" in the out of court statement is that P is a pedophile.

It is not being offered to prove the P is a pedophile.

Thus, it is not hearsay.

DaydreamBeliever
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Re: Nonhearsay vs Not Hearsay

Postby DaydreamBeliever » Wed Apr 17, 2013 11:19 pm

Thanks. It's starting to make more sense. I appreciate it.

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Tanicius
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Re: Nonhearsay vs Not Hearsay

Postby Tanicius » Wed Apr 17, 2013 11:30 pm

WTF "Nonhearsay" versus "not hearsay"?? That's only a difference that your professor made up. Those two things mean the exact same thing - a failure to meet the definition of 801.

Everything under 803 and 804 is hearsay - there's just a legal exception for it. To call it "non-hearsay" seems like a very easy way to get the 803 exceptions confused with the 801 exemptions.

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Mike12188
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Re: Nonhearsay vs Not Hearsay

Postby Mike12188 » Wed Apr 17, 2013 11:51 pm

Tanicius wrote:WTF "Nonhearsay" versus "not hearsay"?? That's only a difference that your professor made up. Those two things mean the exact same thing - a failure to meet the definition of 801.

Everything under 803 and 804 is hearsay - there's just a legal exception for it. To call it "non-hearsay" seems like a very easy way to get the 803 exceptions confused with the 801 exemptions.


Yea I've never heard of the distinction until this thread. I really think it has to do with prior statements and admissions under 801(d) which are clearly labeled "not hearsay" which is probably what your prof. is talking about.

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Re: Nonhearsay vs Not Hearsay

Postby Citizen Genet » Thu Apr 18, 2013 11:39 am

Mike12188 wrote:
Tanicius wrote:WTF "Nonhearsay" versus "not hearsay"?? That's only a difference that your professor made up. Those two things mean the exact same thing - a failure to meet the definition of 801.

Everything under 803 and 804 is hearsay - there's just a legal exception for it. To call it "non-hearsay" seems like a very easy way to get the 803 exceptions confused with the 801 exemptions.


Yea I've never heard of the distinction until this thread. I really think it has to do with prior statements and admissions under 801(d) which are clearly labeled "not hearsay" which is probably what your prof. is talking about.


Which for the record, is dumb.

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kalvano
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Re: Nonhearsay vs Not Hearsay

Postby kalvano » Thu Apr 18, 2013 12:01 pm

My prof made a big deal out of the 801 exemptions. It was the difference between a good and bad grade.

portaprokoss
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Re: Nonhearsay vs Not Hearsay

Postby portaprokoss » Thu Apr 18, 2013 1:13 pm

Hearsay in three easy steps:

1) Is there an out of court statement?
Yes, declarative defendant allegedly said plaintiff is a pedo.

2) What is the evidence (i.e., this statement) being offered to prove?
That "D uttered the defamatory remarks"

3) Does the probative value of the statement depend on the credibility of the declarant?
No. For hearsay purposes we don't care if defendant was lying or mistaken, we care if witness is lying (about hearing the words) or mistaken (about what he heard).

Not hearsay.

Non-hearsay is something that is technically hearsay, but the rules say "pretend like this isn't hearsay" such as 1) statements of prior out-of-court identification and 2) admissions by a party opponent.

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Tanicius
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Re: Nonhearsay vs Not Hearsay

Postby Tanicius » Thu Apr 18, 2013 1:31 pm

portaprokoss wrote:Hearsay in three easy steps:

1) Is there an out of court statement?
Yes, declarative defendant allegedly said plaintiff is a pedo.

2) What is the evidence (i.e., this statement) being offered to prove?
That "D uttered the defamatory remarks"

3) Does the probative value of the statement depend on the credibility of the declarant?
No. For hearsay purposes we don't care if defendant was lying or mistaken, we care if witness is lying (about hearing the words) or mistaken (about what he heard).

Not hearsay.

Non-hearsay is something that is technically hearsay, but the rules say "pretend like this isn't hearsay" such as 1) statements of prior out-of-court identification and 2) admissions by a party opponent.



Everything you say is true except for the distinction you draw between "not" and "non." Those words mean exactly the same thing.

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Re: Nonhearsay vs Not Hearsay

Postby DaydreamBeliever » Thu Apr 18, 2013 2:47 pm

There seems to be a couple different theories.

One being that there is no difference.

The other saying that nonhearsay includes verbal acts, effect on listener, etc and not hearsay = 801(d).

It's interesting that there is such a wide division on this topic and I'm surprised this hasn't been clearly defined somewhere else.

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kalvano
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Re: Nonhearsay vs Not Hearsay

Postby kalvano » Thu Apr 18, 2013 3:17 pm

Because hearsay is such a clear and well-defined area of the law.

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Re: Nonhearsay vs Not Hearsay

Postby portaprokoss » Thu Apr 18, 2013 3:59 pm

Tanicius wrote:
portaprokoss wrote:Hearsay in three easy steps:

1) Is there an out of court statement?
Yes, declarative defendant allegedly said plaintiff is a pedo.

2) What is the evidence (i.e., this statement) being offered to prove?
That "D uttered the defamatory remarks"

3) Does the probative value of the statement depend on the credibility of the declarant?
No. For hearsay purposes we don't care if defendant was lying or mistaken, we care if witness is lying (about hearing the words) or mistaken (about what he heard).

Not hearsay.

Non-hearsay is something that is technically hearsay, but the rules say "pretend like this isn't hearsay" such as 1) statements of prior out-of-court identification and 2) admissions by a party opponent.



Everything you say is true except for the distinction you draw between "not" and "non." Those words mean exactly the same thing.


Functionally they are the exact same thing . . . they get in. If something isn't hearsay, it gets in. If something is hearsay, but there's a hearsay exception, it gets in. If there's a rule or policy that trumps hearsay, it's non-hearsay and it gets in. It's a completely arbitrary distinction, but it's there because of the notes to the rules say so, e.g., "Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule." And this is kind of a silly point, but all my supplements draw the distinction as well.

[note: some posters above are wrong. There are certain classes of statements that are not offered for their proof: 1. Legally operative facts, 2. Words offered to show effect on hearer or reader, 3. Words offered as circumstantial evidence of declarant’s state of mind, and 4. Prior Statements by Witness affecting credibility. These are NOT hearsay, because they fail to meet the definition of hearsay. You do not need a hearsay exception because it isn't hearsay.

However, once hearsay always hearsay (with one caveat I'll address below). So if you have a hearsay statements--a statement that satisfies the three part test above--it is a hearsay statement EVEN IF you find a hearsay statement that lets it in. If I bump off a hearsay declarant so he cannot testify, the hearsay statement is admissible against me because of the forfeiture hearsay exception . . . but it's still a hearsay statement, it just happens to gets in because it's an exception under Rule 803.

The caveat. There are a few things that 1) are technically hearsay (i.e., satisfy the definition), 2) are not covered by a "hearsay exception," but 3) still get in.

Things like 1) nonassertive conduct and 2) statements not offered for its truth FAIL the hearsay test: they are NOT hearsay. Prior statements of identification, admissions of part-opponent, prior consistent statements offered to rebut charge of recent fabrication, prior inconsistent statements made under oath . . . all of these things 1) are technically hearsay, 2) don't have an exception, but 3) get in regardless; these are NON-hearsay. You call hearsay that gets in under an exception "hearsay," you don't call hearsay that gets in without an exception "hearsay," you call it "non-hearsay."

A rule saying "we declare this not to be hearsay" and a rule saying "this is a hearsay exception," have the EXACT same consequences. Even so, the rules use different nomenclature and people have adopted it. When does this matter? Never, unless your professor is pedantic (most are).]
Last edited by portaprokoss on Thu Apr 18, 2013 4:27 pm, edited 8 times in total.

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kalvano
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Re: Nonhearsay vs Not Hearsay

Postby kalvano » Thu Apr 18, 2013 4:01 pm

portaprokoss wrote:Functionally they are the exact same thing


Which doesn't matter on an Evidence exam. So it's good to get into the habit of distinguishing between what is hearsay but allowed with an exception, and what is categorically excluded as specifically not hearsay.

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Tanicius
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Re: Nonhearsay vs Not Hearsay

Postby Tanicius » Thu Apr 18, 2013 4:16 pm

If there's a rule or policy that trumps hearsay, it's non-hearsay and it gets in. It's a completely arbitrary distinction, but it's there because of the notes to the rules say so, e.g., "Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule." And this is kind of a silly point, but all my supplements draw the distinction as well.


The bolded is what I don't agree with. It's an exception, but I've never heard exceptions referred to as "non" hearsay.

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kalvano
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Re: Nonhearsay vs Not Hearsay

Postby kalvano » Thu Apr 18, 2013 4:24 pm

Calling it "nonhearsay" is stupid. It's hearsay, it's just excepted hearsay.

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Re: Nonhearsay vs Not Hearsay

Postby portaprokoss » Thu Apr 18, 2013 4:29 pm

kalvano wrote:Calling it "nonhearsay" is stupid. It's hearsay, it's just excepted hearsay.


Well it's not stupid if your professor is going to count your answer wrong for bubbling "Not hearsay" or "Excepted Hearsay" instead of "Non-hearsay." If you professor cares, so should you. If your professor doesn't, then who gives a flying fuck.

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Tanicius
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Re: Nonhearsay vs Not Hearsay

Postby Tanicius » Thu Apr 18, 2013 4:55 pm

portaprokoss wrote:
kalvano wrote:Calling it "nonhearsay" is stupid. It's hearsay, it's just excepted hearsay.


Well it's not stupid if your professor is going to count your answer wrong for bubbling "Not hearsay" or "Excepted Hearsay" instead of "Non-hearsay." If you professor cares, so should you. If your professor doesn't, then who gives a flying fuck.



So we're in agreement this is a distinction the OP's professor made up, and not one really anyone else in the thread is qualified to answer.

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Pizon
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Re: Nonhearsay vs Not Hearsay

Postby Pizon » Thu Apr 18, 2013 5:39 pm

The FRE has a number of "exclusions" that it considers non-hearsay. For example, a party admission is considered non-hearsay by the FRE. It's excluded from what the FRE deems hearsay (even though it's an out of court statement offered for its truth), whereas in states like New York it's an exception to the hearsay rule.

It seems your professor wants you to distinguish between what's excluded from hearsay and what wouldn't be hearsay with or without an exclusion. My guess would be your professor wants you to call the exclusions non-hearsay. But I'd ask your professor for a clarification, because it isn't an obvious distinction. If something is non-hearsay, that means it's not hearsay.




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