Hearsay v. Not Hearsay | Problem 39

The Rule:

Hearsay evidence is not admissible in court, unless an exception applies.

Hearsay is an assertive statement (oral, written, or non-verbal), which is offered to prove as truth of that statement. The statement was made out of court so the declarant (person who made the statement) is unable to be cross-examined.

The tricky part: hearsay may be admitted if the statement is not offered prove the truth of what was actually stated. For example, assertions can reflect a state of mind versus an assertion of truth. This distinction is difficult to grasp, hence this series of mini-exercises.

Problem 39

The Statement:

Plaintiff sues Mechanic Shop for negligently failing to repair Plaintiffs brakes, which led to serious injuries. In its defense, Mechanic Shop calls its Manager to testify that before Plaintiff picked up the car, a Mechanic personally tested the brakes to ensure that they worked properly.

Is the Managers testimony about what Manager did classified as hearsay?

No. The mechanics testing of the brakes would be non-assertive conduct. This one seems close, but the testing is considered conduct in the performance of a job versus an assertive statement. The testimony involves what the mechanic did not what the mechanic stated or asserted.

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