Quick Tip: Definition of Hearsay

Hearsay makes up roughly one-quarter of the 25 Evidence MBE questions—and it appears on nearly every Evidence essay. As you’re reviewing how to tackle evidentiary hearsay questions, remember to make sure you have a methodical approach to examine hearsay issues.

1️⃣ First, determine whether the statement meets the definition of hearsay.

2️⃣ Second, determine whether there are any applicable exclusions.

3️⃣ Then, finally, examine whether there are any application exceptions.

Let's take a closer look at "Step 1: Does the statement meet the definition of hearsay?" because this is where most examinees either (1) jump ahead too quickly or (2) get tripped up by the trickiest part: TOMA, or the “truth of the matter asserted.”

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Under Rule 801(c), hearsay is:

“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.”

Let's break that rule into three parts:

1️⃣ Is it a statement?

It can be oral, written, or nonverbal conduct meant to communicate something (like a thumbs-up or shaking your head “no”).

2️⃣ Was the statement made out of court?

Anytime the declarant said (or did) it outside of the current in-court testimony, this element is satisfied—even if the declarant is now testifying live and repeating what they once said.

3️⃣ Is the out-of-court statement being offered to prove the truth of the matter asserted?

This is where the real confusion starts.

Ask yourself: Why is this statement being offered into evidence?

If it’s being introduced to show that what it says is actually true, then yes—it’s hearsay.

But if it’s being introduced for some other reason, it’s not hearsay.

Here are four common non-TOMA purposes that show up often on the bar:

1️⃣ Effect on the listener (Example: “The brakes are out!” to show why the listener acted a certain way, not that the brakes were really out.)

2️⃣ State of mind or intent (Example: “I’m going to kill him” to show the speaker’s motive, not whether the act happened.)

3️⃣ Legally operative language (Example: “I accept” to form a contract or “I do” in a marriage ceremony.)

4️⃣ Impeachment (Example: A prior inconsistent statement used to discredit a witness, not to prove what was said.)

Quick Test: Ask yourself, "Would the statement still matter if it were a lie?" If the answer is yes, then the statement is probably not being offered for its truth.

Understanding and examining this first step is half the battle to answering hearsay questions consistently and correctly. It also saves you from wasting time analyzing exclusions or exceptions that don’t even apply because the statement doesn't even meet the definition of hearsay in the first place.