hearsay or non hearsay Flashcards
As proof that B lacked testamentary capacity in April, evidence that several times in March he told friends that he was Woody Allen.
NON HEARSAY
- circumstantially shows state of mind
- matter asserted: that he is Woody Allen, not his testamentary capacity
As proof that C assumed that risk of accident on account of faulty brakes in riding in D’s car, D’s testimony that “I told C before he got in that something was wrong with my brakes.”
NON HEARSAY
- effect on listener
- matter asserted: told C something was wrong with brakes
- trying to prove: C knew risk of faulty brakes
In E’s personal injury suit, as proof that F was an agent of defendant All-Cure Drugstore, E’s testimony that F said, “I’m awfully sorry, I was running an errand for my employer All-Cure Drugstore.”
HEARSAY
- trying to prove: F is agent of ∆
As proof that G stole a car, evidence that police stopped him and that his girlfriend H falsely stated at that time, “This car belongs to my brother.”
NON HEARSAY
- trying to prove: G stole the car
- matter asserted: the car belongs to my brother
- PV because gf lied and implies guilt
As proof that H was frightened when J brandished a plastic pistol and demanded cash, evidence that H began sweating and shaking.
NON HEARSAY
- see do rule, nothing to suggest he intended his conduct
- nonverbal conduct not intended as assertion
As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M 10 minutes later, coupled w/ M’s testimony that it was “just past midnight when L told me that she saw K enter.”
NON HEARSAY
- L testifies to see do rule
- trying to prove: K entended to building at 12
- this is marking time
- L’s words to M are not offered to prove the matter asserted; we need the statement to reference the point in which K entered the building
As proof that N committed the robbery w/ which he is charged, testimony from bystander O that “I picked N out of the lineup as the one who did it.”
HEARSAY
- nonverbal conduct intended as as assertion (pointing)
- trying to prove: N committed robbery
- matter asserted: I picked N out of the lineup
As proof that P and Q had never met before, evidence that Q said to P on parting after a short conversation: “Very nice to meet you”
most likely HEARSAY
- statement is really saying “I just met you” so it is being offered to prove they had just met
- matter asserted: nice to meet you
- trying to prove: P & Q never met before
As proof that P was unusually accomplished in French, evidence that in her first year of college she was accepted into a fourth-year course.
NON HEARSAY
- nonverbal conduct NOT intended as an assertion
- in TX could be hearsay only if conduct is intended as substitute for speech
As proof that defendant Q participated in a criminal venture under duress, evidence that co-participant R told him, “We will kill you if you don’t help us.”
NON HEARSAY
- listener’s state of mind
- trying to prove: Q was under duress when he acted criminally
- NO independent legal significance because the mere speaking of the words ≠ duress
As proof that S favored increasing the penalties for drunk driving, evidence that she joined an organization entitled Mothers Against Drunk Driving, coupled w/ proof that the principal aim of the organization is to increase such penalties.
NON HEARSAY
- nonverbal conduct not intended as statement
As proof that defendant T owned a .32 caliber pistol, testimony by a police officer that when he asked T’s father whether T owned such a pistol, father went to a drawer in the house where he and T lived, pulled out a .32 caliber pistol, and handed it to the officer.
HEARSAY
- nonverbal conduct INTENDED as assertion
As proof that it was raining at 10am, proof that X said at the time, “it should stop raining in the next hour.”
HEARSAY
- offered to prove that is raining by asserting it should, which means that it currently is
As proof that officer V acted in good faith in arresting W, offered by V in defending against the claim brought by W for violation of his rights, evidence that the prosecuting attorney told V “you have probable cause to arrest W.”
NON HEARSAY
- effect on listener
- matter asserted: you have PC to arrest W
- trying to prove: V acted in good faith
As proof that St. John’s beat Georgetown in basketball, evidence that Z, who had bet on Georgetown, paid off his debt.
NON HEARSAY
- nonverbal conduct that is not intended as an assertion
As proof that X had committed a prior bank robbery, evidence that she was prosecuted for that crime and that a jury had found her guilty.
HEARSAY
- matter asserted: X was prosecuted for robbery and found guilty
- trying to prove: X committed prior robbery
- jury is D
As proof that Y went to NOLA on Tuesday, evidence that on Monday he said, “Tomorrow I’m going to New Orleans.”
HEARSAY
- matter asserted: tomorrow I’m going to NOLA
- trying to prove: Y went to NOLA on Tuesday
- probative only if true to prove the matter asserted
As proof that his brakes were bad, evidence that Z said, “I think I ought to reline my brakes before anybody drives the car.”
HEARSAY
- oblique way of saying brakes are bad
- circumstantially relevant to show something wrong w/ brakes
- direct verbal assertion offering to prove brakes are bad
As proof that E was selling pornographic literature, evidence that he received a letter from F enclosing a check and saying in substance “please send me that dirty book.”
NON HEARAY
- placing an order looks like an offer and acceptance so it seems to have an independent legal signficicance
As proof that G knew H, evidence that G had in his cellphone directory H’s name and H’s phone number.
NON HEARSAY
- non assertive act of putting numbers in phone
As proof of the manner in which X was injured in the workplace, evidence of a videotape in which X reenacts the events that led to her injury, offered in proof by X.
HEARSAY
- conduct intended as assertion
- matter asserted: this is how the accident happened
- trying to prove: this is how the accident happened
As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E “not to drive it out of San Francisco.”
NON HEARSAY
- words of indenpendent legal significance because it limits the scope of the permission so it makes a verbal act
- could be effect on listener, E thought permission allowed
As proof that tenant G terminated his month-to-month tenancy effective Nov. 1, evidence that G sent owner H a letter in Sep. that stated: “Oct. will be my last month as tenant. I am vacating by Nov. 1.”
NON HEARSAY
- independent legal significance of terminating lease
As proof that the stairs in Bloomingdeal’s were adequately lighted, testimony by the floor manager that in 6 years several customers had complained that they were a long hard climb but no one had mentioned any lighting problem.
NON HEARSAY
- conduct instead of speech (non-complaint)
- offered to prove the absence of complaint by implying there was nothing to complain about
