hearsay or non hearsay

Question 1

As proof that B lacked testamentary capacity in April, evidence that several times in March he told friends that he was Woody Allen.

Answer 1

NON HEARSAY

• circumstantially shows state of mind
• matter asserted: that he is Woody Allen, not his testamentary capacity

Question 2

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.”

Answer 2

NON HEARSAY

• effect on listener
• matter asserted: told C something was wrong with brakes
• trying to prove: C knew risk of faulty brakes

Question 3

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.”

Answer 3

HEARSAY

- trying to prove: F is agent of ∆

Question 4

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.”

Answer 4

NON HEARSAY

• trying to prove: G stole the car
• matter asserted: the car belongs to my brother
• PV because gf lied and implies guilt

Question 5

As proof that H was frightened when J brandished a plastic pistol and demanded cash, evidence that H began sweating and shaking.

Answer 5

NON HEARSAY

• see do rule, nothing to suggest he intended his conduct
• nonverbal conduct not intended as assertion

Question 6

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.”

Answer 6

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

Question 7

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.”

Answer 7

HEARSAY

• nonverbal conduct intended as as assertion (pointing)
• trying to prove: N committed robbery
• matter asserted: I picked N out of the lineup

Question 8

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”

Answer 8

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

Question 9

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.

Answer 9

NON HEARSAY

• nonverbal conduct NOT intended as an assertion
• in TX could be hearsay only if conduct is intended as substitute for speech

Question 10

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.”

Answer 10

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

Question 11

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.

Answer 11

NON HEARSAY

- nonverbal conduct not intended as statement

Question 12

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.

Answer 12

HEARSAY

- nonverbal conduct INTENDED as assertion

Question 13

As proof that it was raining at 10am, proof that X said at the time, “it should stop raining in the next hour.”

Answer 13

HEARSAY

- offered to prove that is raining by asserting it should, which means that it currently is

Question 14

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.”

Answer 14

NON HEARSAY

• effect on listener
• matter asserted: you have PC to arrest W
• trying to prove: V acted in good faith

Question 15

As proof that St. John’s beat Georgetown in basketball, evidence that Z, who had bet on Georgetown, paid off his debt.

Answer 15

NON HEARSAY

- nonverbal conduct that is not intended as an assertion

Question 16

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.

Answer 16

HEARSAY

• matter asserted: X was prosecuted for robbery and found guilty
• trying to prove: X committed prior robbery
• jury is D

Question 17

As proof that Y went to NOLA on Tuesday, evidence that on Monday he said, “Tomorrow I’m going to New Orleans.”

Answer 17

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

Question 18

As proof that his brakes were bad, evidence that Z said, “I think I ought to reline my brakes before anybody drives the car.”

Answer 18

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

Question 19

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.”

Answer 19

NON HEARAY

- placing an order looks like an offer and acceptance so it seems to have an independent legal signficicance

Question 20

As proof that G knew H, evidence that G had in his cellphone directory H’s name and H’s phone number.

Answer 20

NON HEARSAY

- non assertive act of putting numbers in phone

Question 21

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.

Answer 21

HEARSAY

• conduct intended as assertion
• matter asserted: this is how the accident happened
• trying to prove: this is how the accident happened

Question 22

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.”

Answer 22

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

Question 23

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.”

Answer 23

NON HEARSAY

- independent legal significance of terminating lease

Question 24

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.

Answer 24

NON HEARSAY

• conduct instead of speech (non-complaint)
• offered to prove the absence of complaint by implying there was nothing to complain about

Question 25

As proof that J had been in the law library before, evidence that on entering the library she said to the attendant, “May I please have the key to the locked cage in the basement, so I can look at Starkie on Evidence?” coupled with proof that in fact that book is shelved in a locked cage at that location.

Answer 25

NON HEARSAY

• offered as circumstantial evidence of knowledge and experience
• trying to prove: J knew that the book was in the basement, suggesting she had experience getting it
• matter asserted: may I have the key to the basement for the book

Question 26

As proof that the hit-and-run driver drove a Porshe, testimony that the logo on the rear of the vehicle in question read “Porshe.”

Answer 26

NON HEARSAY

- logo speaks for itself

Question 27

On the question whether tenant L had paid his rent for the month of April, testimony that in handing landlord M a check in the appropriate amount L said to M, “This is for the April rent.”

Answer 27

NON HEARSAY

- independent legal significance, performing within a K

Question 28

On the issue set in question 27, testimony that on the day after giving the check to M, L was heard to say “I paid my rent for April.”

Answer 28

HEARSAY

• no words of independent legal significance because has nothing to do with the K because he is telling friend after performing on the K
• matter asserted: I paid my rent for April
• trying to prove: I paid April rent

Question 29

As proof that the train had come from the west, testimony by eyewitness N that she pointed in the direction of the train when she heard it coming, coupled w/ testimony by a police officer present at the scene that the direction in which N pointed was west.

Answer 29

NON HEARSAY

- neither is talking of the out of court statements

Question 30

As proof that HiTechCorp was a bad credit risk, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating.

Answer 30

HEARSAY

• matter asserted: poor credit rating
• trying to prove: bad credit risk

Question 31

As proof that BankWest acted reasonably in refusing to refinance HiTechCorp’s debt, evidence that Din & Broodstreet gives HiTechCorp a poor credit rating.

Answer 31

NON HEARSAY

• effect on listener
• trying to prove: acted reasonably
• matter asserted: poor credit rating

Question 32

As proof that R was seriously ill, evidence that he was being kept in the intensive-care unit of the hospital.

Answer 32

NON HEARSAY

• conduct not intended as assertion
• trying to prove: R was seriously ill
• matter asserted: no statement

Question 33

As proof that S is an honest man, evidence that he handed the store clerk a $10 bill for a $7 purchase and, on receiving a $10 bill and three ones from the clerk in change, S returned the $10 bill and said, “I think you’ve made a mistake here.”

Answer 33

NON HEARSAY
- matter asserted: I think you made a mistake
trying to prove: S is honest

Question 34

As proof that V is a violent man, testimony that he is reputed in his community to be such.

Answer 34

HEARSAY
- matter asserted: community thinks V is violent
trying to prove: V is violent