Evidence 1 Flashcards
Concept of Hearsay
Definition of Hearsay
Under one definition of hearsay, a statement is hearsay if it is “offered to prove the truth of the matter asserted.” Under another commonly stated definition, a statement is hearsay if it depends for value on the credibility of an out-of-court declarant.
You should apply these definitions in doing this exercise. Normally the two definitions will lead to the same result. In fact, many courts and commentators treat the two definitions as interchangeable.
If you encounter a situation in which you think a statement would be hearsay under one definition but not under the other, then answer “close.”
Q-2. Sam v. Joe in contract action. Joe admits that he offered to sell Sam widgets at $5000 a carload but denies that Sam accepted the offer. Sam testifies that immediately after receiving Joe’s offer he sent Joe a letter saying: “I accept your offer to sell me widgets at $5000 a carload. This creates a binding contract.” Hearsay?
NO: The statement is not hearsay. This is a classic example of “legally operative language.” The words themselves change legal rights and duties. They are not offered for what they say, but for what they do. Because they are not offered assertively, they are not offered for the truth of any assertion contained in them, and hence are not hearsay.
Q-3. To prove that Sam was a resident of San Francisco in 1966, Joe offers a copy of the San Francisco telephone directory for 1966, containing a listing of Sam’s name, address, and telephone number. Hearsay?
NO:
The telephone directory’s information about Sam could be considered to be is an out of court statement offered for the truth of the matter asserted therein. See People v. Crosby, 58 Cal. 2d 713, 375 P.2d 839, 25 Cal. Rptr. 847 (1962). One can regard it as an assertion that, among other things, the listed person is a resident of San Francisco. On the other hand, some analysts might argue that it is only an assertion about the telephone number and street address , and that it is not offered for the truth of that assertion. But probably at some place (perhaps the cover) the phone directory contains some sort of statement that the territory covered is San Francisco. In arguing that the statement is offered for its truth, the party making that argument might also point out that the policy reasons for treating hearsay as a special type of evidence apply. The statement depends for its value upon the memory, perception, narration, and sincerity of the person preparing the directory and the persons from whom the information was obtained. (Note: even if the statement is hearsay, it would be admissible under the exception established by Federal Rule of Evidence 803(17).)
Q-4. On the issue of defendant’s negligence, plaintiff offers a silent motion picture in which plaintiff’s husband re-enacts the accident. Hearsay?
Yes: The conduct in the motion picture is assertive, and the picture is offered to prove the truth of the matter asserted therein, so it is hearsay.
Q-5. On the issue whether Judy knew that Sam’s briefcase was about to explode, testimony is offered that Judy ducked behind a desk when she saw Sam start to open his briefcase. Hearsay?
NO:
It appears highly unlikely that Judy intended to assert anything by ducking behind the desk. She was probably only trying to protect herself. The burden of proving that nonverbal conduct is intended as an assertion rests on the opponent of the evidence. See Fed. R. Evid. 801(a) advisory committee’s note. Since the inference that Judy was just trying to protect herself is stronger than the inference that she was trying to say something by ducking behind the desk, her conduct would be classified as a non- “statement” under Federal Rule of Evidence 801(a) and hence as non-hearsay under Federal Rule of Evidence 801(c).
Q-6. Plaintiff sues Defendant, claiming breach of an employment contract. Defendant claims that Plaintiff was fired “for cause” within the terms of the contract because Plaintiff was late for work on 10 successive days. To prove that Plaintiff was late for work, Defendant testifies that other employees repeatedly complained about Plaintiff’s tardiness. Hearsay?
Yes:
The other employees’ complaints about tardiness are offered for the truth of the matter asserted therein. They are not being offered to prove that the employer believed that the plaintiff had been late for work (i.e., for the effect upon the hearer), but to prove that in fact the plaintiff was late for work.
Q-7. W testifies at trial that Defendant went through a red light and denies having ever said otherwise. Defendant calls Bystander to the stand. Bystander testifies that W told him “I couldn’t tell whether the light was red or green.” W’s prior statement was not under oath or subject to cross-examination. Hearsay?
No:
As a prior inconsistent statement offered for impeachment purposes, the out-of-court declaration falls into one of the recognized categories of non-hearsay statements. The fact that the statement was not under oath or subject to cross-examination makes no difference if its use is restricted to impeachment. As such, it is not considered to be offered for the “truth of the matter asserted” therein within the meaning of Federal Rule of Evidence 801(c). Instead, it is offered as circumstantial evidence of the witness’s lack of credibility. The fact that the witness’s saying one thing on the stand and another thing beforehand throws doubt on the witness’s credibility, whether or not the prior statement was true. (Note that this prior statement is deemed non-hearsay because it falls outside the general definition of 801(c), NOT because it falls under the special exclusion established by Federal Rule of Evidence 801(d)(1).)
A limiting instruction would be proper in this case. The jury should be told that the statement should be used only for the light it throws on the witness’s credibility, and not for the truth of anything asserted in it.
Q-8. Products liability case. Joe testified that he was injured by an exploding cola bottle. To impeach Joe’s credibility, the defense offers a witness who will testify “Sam was there and told me the bottle never exploded.” Hearsay?
Yes:
The statement is hearsay. It does not fall into any of the established non-hearsay categories. The mere fact that it will tend to impeach another witness does not mean that it falls outside the hearsay ban. The statement does not fall into the non-hearsay category of prior inconsistent statements because the out of court statement was not made by the person who testified inconsistently in court.
Q-9. To prove that an accident was caused by failure of the brakes of X, a non-party, Proponent offers X’s statement, before the accident, “My brakes are bad.” X’s negligence is not in issue. Hearsay?: Opponent concedes that the statement might be non-hearsay if offered merely to show that declarant BELIEVED his brakes to be bad, but points out that in this instance it is being offered on the issue of whether bad brakes caused the accident, i.e., whether they were in fact bad.
Taking this into account, please re-answer: Is the quoted statement hearsay?
Yes
The statement is hearsay and does not fall within any of the established categories of non-hearsay statements. If offered to prove that X had a negligent state of mind, it would probably be deemed to be non-hearsay “circumstantial evidence of state of mind.” See McCormick on Evidence § 250, at 741-42 (Cleary 3d ed. 1984). However, it is not being offered for that purpose. It is offered for the purpose of showing that the accident was caused by the failure of X’s brakes.
Q-10. Defendant is accused of murdering Sam. The prosecution offers evidence that Defendant received a letter from Sam accusing Defendant of robbing a bank. Hearsay?
No
The letter is not hearsay if offered for the limited purpose of showing the effect upon the recipient of the letter. Here, the letter gives the defendant a motive for murdering Sam.
Q-11. State v. Defendant for murder. Defendant claims that Victim was burglarizing Defendant’s house. State offers evidence that just before the alleged crime Defendant’s boy told Victim, “Daddy wants to see you over at our house.” Hearsay?
Opponent argues that the statement is hearsay because its only relevance is to prove that “Daddy” in fact wanted to see the victim, and for this purpose the statement depends for its value upon the credibility of the boy and is offered to prove the truth of the matter asserted therein.
Taking this into account, re-answer the question:
NO
The quoted statement has probative value regardless of its truth and regardless of the credibility of the declarant. It tends to explain why the victim was at Defendant’s house and to rebut the claim that he was burglarizing the house. It is admissible for its effect on the hearer.
Q-12. Sam v. Jill in assault action. Jill admits that she pointed a gun at Sam but claims that she did so because Sam was attempting to break into her garage. She testifies that just before the incident a neighbor called and said “Sam is coming over to steal stuff from your garage.” The testimony is offered to show that Sam tried to break into the garage. Hearsay?
yes
The testimony is hearsay. Because it is being offered to show that Sam in fact tried to break into the garage, instead of to show that Jill reasonably believed that Sam was attempting to break into the garage, it is not offered for its effect upon the hearer. Rather, it is being offered for the truth of the matter asserted and does not fall within any established categories of non-hearsay statements.
Q-13. On the issue of whether the transfer of a wristwatch was a loan or a gift, the transferor’s statement, when handing over the wristwatch, “this is a gift.” Hearsay?
No:
The quoted words would be considered legally operative language, and thus the statement is not hearsay.
Note that the words are considered non-hearsay even though they state the exact matter sought to be proven. They state “this is a gift”; the matter to be proven is that there was a gift.
Perhaps the non-hearsay classification stems from the notion that the words in no way depend for their value upon the truthfulness of the declarant; hence, in a sense, they are not being offered for the “truth of the matter asserted.” In a jurisdiction in which an objective test of gifts was followed, this would be the case; but if the subjective state of mind of the transferor is significant, then the legal effect of the words does depend upon the transferor’s sincerity. Cf. A Modern Approach to Evidence 360 (Lempert & Saltzberg 2d ed. 1982).
In any event, statements creating a gift have traditionally been classified as non-hearsay. The issue is really academic; if they were treated as hearsay on grounds that subjective intent is controlling, then they would still be admissible as statements of present intent. See Fed. R. Evid. 803(3).
Q-14. Widow v. Insurance Company for life insurance benefits. Insurance Company claims Decedent committed suicide by jumping off television tower. Widow claims Decedent fell off tower during attempt to climb it while drunk. Widow offers evidence that Decedent’s drinking buddy told Decedent, “Harry said he will give $50 to the first person who climbs the tower.” Hearsay?
No: The statement is not hearsay if offered to show its effect upon the hearer. It tends to rebut an inference of suicide by indicating that decedent may have been climbing the tower in order to collect the bet. When offered for that purpose, it has probative value whether it is true or not.
Q-15. On the issue of the time of Sam’s death, testimony that Doctor examined Sam at 6 A.M. and then pulled a sheet over Sam’s head. Hearsay?
Yes:
(Either “Yes” or “Close” is correct.)
APPLYING THE FEDERAL RULES, if Doctor intended to signal to others that Sam was dead, then Doctor’s conduct would be a “statement” within the meaning of Federal Rule of Evidence 801(a) and hearsay under Federal Rule of Evidence 801(c). However, if Doctor intended merely to prevent others from seeing a dead body, mask the odor, or the like, then his conduct would not be a “statement.”
The question whether the conduct was intended as an assertion would be a preliminary question of fact for determination by the trial judge in accordance with Federal Rule of Evidence 104.
Probably the judge would find that the doctor’s conduct was intended to assert to others that Sam was dead. Therefore, although nonverbal, it is a “statement” within the meaning of Federal Rule of Evidence 801(a), and hearsay under Federal Rule of Evidence 801(c) because it is being offered to prove the truth of the matter asserted therein.
IF THE FEDERAL RULES DO NOT APPLY, and hearsay is defined as a statement or conduct that depends for value on the credibility of another, then the action would be considered hearsay if offered to show that Same was dead at the time the doctor pulled the sheet over him. The proposition that Sam was dead depends for value upon the doctor’s uncrossexamined credibility (e.g., his ability to perceive).
If you are confused about the alternate definitions of hearsay used in this exercise, you can review the hearsay definition.
