Class 14: The "Truth of the Matter Asserted" and What Constitutes a "Statement" - Feb. 22 Flashcards
What is the truth of the matter asserted for purposes of the hearsay rule? (Q)
A statement is offered for the truth of the matter asserted if there is a match between the reason the proponent introduced the statement and the assertion in the statement itself.
Ex: If a witness testifies that the declarant said, “The light was red when the defendant drove through it,” and the proponent is using the statement to prove that the light was red when the defendant drove through it, then the statement is being offered for the truth of the matter asserted. However, if the proponent is offering the statement to prove that the declarant is not colorblind, then the statement is not being offered for the truth of the matter asserted.
Are there any out-of-court statements that are not hearsay? (Q)
Yes. Certain out-of-court statements are not hearsay because they are not being introduced to prove the truth of the matter asserted. These include statements offered:
to prove the fact of an utterance,
for impeachment,
because the statement constitutes a verbal act of legal significance,
to show the effect of the statement on the person hearing or reading it,
to demonstrate the declarant’s state of mind, and
to demonstrate association.
Admission of these statements requires that the court determine, under Rule 403, that the probative value of admitting the statement outweighs the chance that the jury may interpret the statement as proof of the matter asserted.
What is a verbal act? (Q)
A verbal act is a statement that has some independent legal significance, in that it triggers rights or liabilities. A verbal act is not hearsay because it is not being offered for the truth of the matter asserted, but rather because of the effect it had in triggering the legal right or liability.
A worker who was fired after taking worker’s compensation leave brought a claim for retaliatory discharge. She testified, “While I was on leave, another employee told me the company was planning to terminate me because I had taken too much leave.” The company objected that the statement was hearsay.
How should the court rule? (Q)
The court should sustain the objection because the statement is hearsay. Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted in the statement.
Here, the statement was made outside of court, by someone who is not currently testifying, i.e., the declarant, and repeated in court by the witness. The worker is offering the statement to prove that the reason for her termination was that she had taken too much leave. This is exactly what the statement says, so the statement is being used to prove the truth of the matter asserted in the statement. Thus, the court should sustain the objection because the statement is hearsay.
The day after a snowstorm the plaintiff slipped on the sidewalk in front of the defendant’s house and broke his ankle. After falling, the plaintiff looked up and noticed a note taped to the defendant’s mailbox. It said, “Please shovel your walk! It has become icy and is dangerous to pedestrians like me!” The plaintiff sued the defendant for negligence, alleging that the defendant did not shovel and salt her sidewalk the day of the slip. The defendant alleged that the sidewalk was clear on the day of the slip. The plaintiff sought to introduce the note left on the defendant’s mailbox. The defendant objected, arguing that the statement was hearsay.
How should the court rule? (Q)
The court should sustain the objection because the statement is hearsay. Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted in the statement.
Here, the written statement was made outside of court, by someone who is not currently testifying, i.e., the declarant, and offered as evidence. The statement asserts that there was ice on the defendant’s sidewalk. The plaintiff is offering the statement in order to prove that there was ice on the defendant’s sidewalk. The statement is being used to prove the truth of the matter asserted in the statement and is hearsay. Thus, the court should sustain the objection.
Are there any out-of-court statements that, despite meeting the definition of hearsay, are specifically exempted from the definition? (Q)
Yes. Some out-of-court statements, despite meeting the definition of hearsay, are specifically exempted from the definition and, therefore, are deemed not hearsay. These include:
Certain prior statements of a declarant-witness, which are exempted because the declarant-witness is at trial and able to be cross-examined about the prior statement; and
Certain statements of a party opponent, which are exempted because the party has the opportunity to explain, clarify, or diminish the importance of the statement at trial.
Police had probable cause to believe that drugs were being stored in apartment 5D on the fifth floor of a certain building. They obtained a search warrant and searched the apartment, successfully finding a large quantity of heroin. However, there were no people in the apartment at the time, and the police were unable to determine who owned or lived in the apartment. The police then stationed themselves outside apartment 5D and waited. A teenager and his mother who lived in the building walked by and saw the police officers standing outside the apartment. The teenager turned to his mother and laughed, saying: “Those cops are morons. Big Jim isn’t coming back to his place if there are a bunch of police waiting outside.” A few minutes later an older woman walked by the apartment and the officer asked her: “Do you know where Big Jim lives?” and she pointed at the door of apartment 5D and then walked away.
Police later arrested James Fanning for possession of heroin. At trial, the prosecutor established that in the neighborhood, Fanning is known as “Big Jim.” The prosecutor then called the police officer to the stand, and asked him to testify about what the teenager said and what the older woman said. The evidence is being offered to prove that a person named “Big Jim” lived in apartment 5D. The defendant’s attorney objected to this testimony as hearsay. How should the court rule? (Merritt)
Admit the statement by the teenager, but preclude the pointing by the older woman. The statement by the teenager was non-assertive conduct; that is, the information he meant to convey was that Big Jim would not return home, not that Big Jim did in fact live in the apartment. Thus, that statement is being offered not to prove the truth of the matter being asserted (that Big Jim would not return home), but to prove a fact that can be inferred from the fact that the declarant made the statement (that Big Jim lived in the apartment). The pointing by the older woman, although not an oral statement, was still a “statement” in the sense that it was intended to communicate a fact (that Big Jim lived in that apartment), and the prosecutor wants to admit this statement to prove the fact being asserted—thus, it is a hearsay statement. (Ch 37 Quiz)
What is the test for something to be the “truth of the matter asserted”? (Russo)
(1) Does the evidence contain a statement?
(2) Was the statement made outside of court?
(3) Is the party offering the statement to prove the truth of the matter asserted?
(4) Does an exception apply?
(5) If offered in a criminal case, does the 6th amendment confrontation clause limit or preclude the use of the statement?
(2/22)
What is a statement? (Russo)
Statement = assertion of fact being made + made by a human being.
The person has to intend for the statement to be a thing.
(2/22)
Can a gesture be an assertion of fact? (Russo)
Yes. (2/22)
