Hearsay/Non-Hearsay/Not-Hearsay Flashcards
Facts upon which the value of testimony depends are:
(1) Perception
(2) Memory
(3) Narration
(4) Sincerity
Performative Utterances
• “I want my insurance policy canceled.” (Creaghe)
o Act of saying those words cancels the contract.
• “It’s going to be $10,000” – pricing the testimony (Montana)
• Saying “I do”
• “This is your corn for the year” (Hanson)
Non-hearsay uses of out-of-court statements: ELVIS
- Effect on listener
• e.g., Subramaniam (hearer’s fear or duress) - Declarant’s state of mind
• e.g., Lyons v. Morris Barney case – d’s confusion re: costume - Verbal acts/operative conduct
• Performative utterances - Implied assertions
Implied Assertions
Not hearsay, because not technically a “statement” per 801(a)
• Another way to think about it: “non-assertive verbal statements,” i.e. statements that are not intended to assert or convey – they simply perform.
Implied assertions contain two concepts:
(1) Signaling without words
a. Conduct intended to convey something
(2) Signaling one thing by saying another
a. You intent to convey x, but you signal or convey y
NON-VERBAL CONDUCT CAN BE A STATEMENT – if intended as assertion
• Nodding your head = statement
• Keeping your hand down to indicate “no” = statement
• Fleeing country to escape prosecution = not statement
Zenni case: “Put $100 on Secretariat”
• Holding: Calls are admissible, because they are not “statements” since they were non-assertive verbal utterances
• To utter, “Put $2 on Paul Revere in the third at Pimlico” is a direction and not an assertion of any kind, and therefore can be neither true nor false.
• If callers had said, “I want $2 on Paul Revere,” that could be true/false and so it would be a statement
4 categories: verbal assertive; non-verbal assertive; verbal non-assertive; non-verbal non-assertive.
Which can be hearsay?
- Verbal assertive (“statements”)
• Hearsay if for TOMA
• Non-hearsay if for inferring something other than the truth - Nonverbal assertive (“statements”)
• Hearsay if for TOMA
• Non-hearsay if for inferring something other than the truth - Verbal non-assertive utterances
• If non-assertive it’s automatically non hearsay. It isn’t a statement. - Non-verbal non-assertive
• If non-assertive it’s automatically non hearsay. It isn’t a statement.
PIS/PCS: When can PIS be admitted for substantive evidence? Can it be admitted for impeachment? How about PCS? What is the major limit on PCS?
PIS must be under oath. If not under oath, can come in for impeachment.
PCS can come in for SE if PRE-MOTIVE. If it is post-motive, it can still be used for impeachment.
What are the 5 parts of the opposing party rule in 801?
- Statement is offered against opposing party
- Was made by the party in an individual or representative capacity
- Was made by a person whom the party authorized to make a statement on the subject
- Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.
- Was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
What are similarities/differences in how to treat PSIs/EUs?
Both have personal knowledge req. (SUFFICIENCY determination)
PSI is contemporaneous; more time for EU.
EU: Was declarant under the stress of excitement caused by the event? (Determined by PREPONDERANCE standard.)
PSI’s don’t require stress/excitement.
In 803/04, must declarant be a witness?
YES.
“In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge.”
Is the statement enough to show authority, agency, or conspiracy in parts (c), (d) and (e) of OPS?
No.
You statement alone does not establish declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Don’t forget: Must be DURING or IN FURTHERANCE of conspiracy.
What standard to prove conspiracy existed?
PREPONDERANCE.
Statements of memory/belief (backward-looking statements) cannot be admitted under 803(3), with what one exception?
Statement’s related to the validity/terms of wills.
Can 803(3) be used to glean a third-party’s intent?
Yes – per Houlihan. No corroborating evidence needed.
This court interprets 803(3) to mean (a) third party’s intent is ok and (b) without corroborating evidence.
Shortcut for remembering 803 exceptions
PRIMERIB
o Public records (8)
o Impressions (1)
o Mind (state of) (3)
o Excited utterances (2)
o Recorded Recollection (5)
o Injury Reports
o Business Reports (6)
Past Recollection Recorded vs. Present Recollection Refreshed
Past Recollection Recorded:
- They can’t recall, so you have them read the past recollection.
- Need to LAY FOUNDATION.
Present Recollection Refreshed:
- Jogging their memory
- DO NOT need to lay foundation
FRE 612 governs the writing that can be used to refresh.
