Chapter 7 Hearsay: Definition and Applications (Evidence Book p. 294-297)

Question 1

Because _________ ________ of a witness is the hallmark of our adversarial truth-finding system, we generally want to hear only from witnesses who are actually in the court-room, and subject to ____ __________, rather than just being told about someone’s previous out of court statements.

Answer 1

cross-examination

cross-examination

Question 2

The rule against hearsay makes such statements inadmissible because they are often unreliable, not subject to the scrutiny of cross-examination when made (where _______, _______, _______ and ________ of the person can be tested), usually not made under oath, and they deny to the parties the opportunity to confront witnesses against them, as well as deny to the jury the opportunity to assess the demeanor evidence of the person making the statement.

Answer 2

perception, memory, narration, and sincerity

Question 3

Hearsay Analysis. Consider the following five steps in determining whether an out-of-court statement is hearsay:
1. ?
2.
3.
4.
5.

Answer 3

1. Identify the Declarant and identify the Witness who repeats the statement in court

Question 4

Hearsay Analysis. Consider the following five steps in determining whether an out-of-court statement is hearsay:
1.
2. ?
3.
4.
5.

Answer 4

2. Determine whether the Declarant has made a “Statement”

Question 5

Hearsay Analysis. Consider the following five steps in determining whether an out-of-court statement is hearsay:
1.
2.
3. ?
4.
5.

Answer 5

3. Determine whether or not the statement was one that the Declarant did not make while testifying at the current trial or hearing

Question 6

Hearsay Analysis. Consider the following five steps in determining whether an out-of-court statement is hearsay:
1.
2.
3.
4. ?
5.

Answer 6

4. Determine if the “Statement” contains a direct assertion; and,

Question 7

Hearsay Analysis. Consider the following five steps in determining whether an out-of-court statement is hearsay:
1.
2.
3.
4.
5. ?

Answer 7

5. Determine whether the statement was offered to prove the truth of the matter asserted in the statement.

Question 8

_________ is defined as an out-of-court statement (either written or oral assertions, or assertive conduct intended as a communication) made by a declarant (the person who made the assertion), and related in court by a witness (the person who heard, read, or saw the declarant’s out-of-court assertion), when that out-of-court statement is being used to “prove the truth of the matter asserted” by the declarant.

Answer 8

Hearsay

Question 9

Hearsay is defined as an out-of-court statement (either written or oral assertions, or assertive conduct intended as a communication) made by a __________ (the person who made the assertion), and related in court by a witness (the person who heard, read, or saw the declarant’s out-of-court assertion), when that out-of-court statement is being used to “prove the truth of the matter asserted” by the declarant.

Answer 9

declarant

Question 10

Hearsay is defined as an out-of-court statement (either written or oral assertions, or assertive conduct intended as a communication) made by a declarant (the person who made the assertion), and related in court by a witness (the person who heard, read, or saw the declarant’s out-of-court assertion), when that out-of-court statement is being used to “_______ _____ _____ _____ ______ _____ ______” by the declarant.

Answer 10

prove the truth of the matter asserted

Question 11

A _________ is an intended communication made by the declarant.

Answer 11

statement

Question 12

A statement is an _________ communication made by the declarant.

Answer 12

intended

Question 13

A statement is an intended _________ made by the __________.

Answer 13

communication

declarant

Question 14

__________ the person who made the assertion.

Answer 14

declarant

Question 15

Words that are spoken, or written constitute a statement, as long as those words are intended as a communication by a declarant who has “asserted” something. Implicit underlying assumptions of the declarant when making the statement, on the other hand, are not considered assertions, and therefore they are not “statements.” True or False.

Answer 15

True

Question 16

____________ ________ by the declarant can be a statement by the declarant as long as the declarant engaging in the conduct is intending her conduct/actions to be a communication.

Answer 16

nonverbal conduct

Question 17

For example, pointing or nodding is assertive conduct. Also, offering a staged videotape of actions showing the plaintiff performing certain tasks in order to communicate the extent of his disability, would be ________ _______, and thus a statement (even though no words were spoken or written.)

Answer 17

assertive conduct

Question 18

If a declarant’s conduct is NOT intended as an assertion (such that they are just living life), then it is not ________, and a witness can testify about that non-assertive conduct as simply being observed behavior of someone who did not intend her conduct/actions/behavior as a communication or assertion of any kind.

Answer 18

hearsay

Question 19

The declarant’s non-assertive conduct (including even a question asked) would simply be circumstantial evidence of something else relevant in the case. True or False

Answer 19

True

Question 20

A _________ must be a human being who has made the out-of-court statement in question. Therefore, alleged “assertions” of a ______ ____ _______ (e.g., a clock, or thermometer, or radar gun), or of an _______ (e.g., bloodhound following a scent) are not statements because the declarant is not a person.

Answer 20

declarant

device or machine

animal

Question 21

However, a person who interprets the output of machines, devices, animal behavior, etc, or programs a computer, might make an inadmissible hearsay assertion about them. True or False.

Answer 21

True

Question 22

An out-of-court statement intended as a communication/assertion by the declarant, and related in court by a witness, may still not be considered hearsay, if it is being used for some _______ ________, other than to prove the truth of the matter asserted by the declarant in her out of court statement.

Answer 22

relevant purpose

Question 23

If spoken or written words have their own intrinsic legal value or consequences, such as defamation, threats, perjury, words contained in a contract, words of offer or acceptance, or sales invoices and cancelled checks to prove tax evasion, etc, then those words themselves are ________ ______ ______ (or ______ _______ of a ______ _______), and as such do not fit the definition of hearsay.

Answer 23

independent legal acts

verbal parts of a legal act

Question 24

If spoken or written words are used to show why a listener, reader, or observer, of an out of court statement, may have felt _________, afraid, angry, upset, put on ________, misled, etc., then such does not fit the definition of hearsay.

Answer 24

threatened

notice

Question 25

Some _______ conduct may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This observation is consistent with the purpose of the hearsay rule the exclusion of declarations whose veracity cannot be tested by cross-examination. There is some guarantee that an inference drawn from out-of-court behavior is trustworthy, because people base their actions on the correctness of their belief.

Answer 25

nonverbal

Question 26

If spoken or written words are used, not to show the truth of the matter asserted, but only as ______ ______ of what the declarant must have been thinking when those words were spoken or written then such does not fit the definition of hearsay.

Answer 26

circumstantial evidence

Question 27

For example, if a decent stated in her will that her husband failed to support her in life and therefore she leaves him one dollar it would not be hearsay if it is being used to prove that the descendant and he husband had a ______ ________.

Answer 27

troubled relationship

Question 28

As another example, if a declarant said my husband is disgusting that would be heresy but only if one were actually trying to prove that her husband was disgusting. If used only to show that she thinks badly of her husband, then it would not be hearsay. This is very similar to the analysis for effect on the listener, reader, or observer, above but it is focused on when the person affected is the declarant. True or False

Answer 28

True

Question 29

___________ of a witness using a prior inconsistent statement of that witness (Rule 613) is not hearsay because the cross-examining attorney is not using the prior inconsistent statement for its truth (in which case, it might be hearsay.)

Answer 29

impeachment

Question 30

Instead, the prior inconsistent statement is being used only to show that the witness story is inconsistent that the witness says different things at different times. Meaning that what the witness said before is different from what the witness is saying now in court, so the jury ought to be made aware of it. !!

Answer 30

!!

Question 31

The use of _______ has become a regular means of communication, or supplementing communication, between individuals.

Answer 31

emojis

Question 32

________ provide unique challenges in an evidentiary analysis including questions such as what is intended by the little icons, what icon is ultimately seen by the receiver, what does the picture mean in the context in which it is sent, and other questions.

Answer 32

Emoji

Question 33

Unfortunately, it can be difficult at times to determine what is meant by a particular emoji. One study estimated that emojis sent across platforms resulted in an error rate of slightly above 20%. The same study showed an error rate within the same platform of a little less than 20%. Courts must evaluate _______ by the existing ______ rules unless, and until, they are revised.

Answer 33

emojis hearsay

Question 34

There might be more than one _______ in a chain of hearsay statements.

Answer 34

declarant

Question 35

Jim told Sally who told me that the light was green for the plaintiff. Thus, there are ___ levels of out-of-cout statements being used here to prove the truth of the matter asserted.

Answer 35

2

Question 36

Under Rule 805, each level or leg of hearsay must have its own hearsay exclusion, or exception, to be admissible. If not, it is _________ _________.

Answer 36

inadmissible hearsay.