(Made up case)

Husband and wife died in plane crash.  They had separate wills which provided that their property should go to surviving spouse and if no surviving spouse, to his/her children.  Thus, it was crucial to determine who died first.  The testimony of witness presented that the husband uttered at the crash scene that he was alive.  The trial court excluded this statement as hearsay.

The issue presented to the appellate court was whether the out-of-court statement of the husband constituted hearsay.  The court answered in the negative and reversed the trial court’s ruling.

The court reasoned that the husband’s out-of-court statement was not being admitted to prove the truth of the matter asserted.  It was only presented to show that the husband said something and he was alive.  The husband could have said “I AM DEAD” and still his statement would prove that he was actually alive.  The use of this statement did not depend on the husband’s memory, perception or truthfulness and it was not hearsay.

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