Hearsay: which statements are Hearsay and which are not Flashcards
What is Hearsay?
An out-of-court statement offered to prove the truth of the matter asserted
What are three (good) reasons to exclude Hearsay?
1) Absence of cross-examination….most important due to confrontation clause
2) Absence of demeanor/crediblity evidence
3) no oath
What are the Four Hearsay Risks?
Misperceptions as a function of:
Sensory capacity
Physical circumstance
And mental and psychological condition
Faulty Memory
Memory problems increase with the time
Risk of misstatement
Also the risk of ambiguity or faulty narration
The risk of distortion
Can be conscious or unconscious
How does FRE 801: Hearsay differ state hearsay rules?
FRE 801:
- -> Declarant is a person: machine, animal, or radar not hearsay
- -> For conduct to be an assertion…must have “intent to communicate
States:
- -> Some consider statements by non-humans as hearsay
- -> Non-assertive conduct may be hearsay if it implies the truth, even without intent
What is a statement?
Rule 801(a): Statements can be either assertive or non-assertive but still must imply or have an intention
What is Assertive Conduct that would be a statement under FRE 801(a)?
Any nonverbal conduct of a person “if intended” as assertion
Ex: shrug, nod, thumbs up
What is non-assertive conduct, and is it hearsay?
Under FRE 801(a), non assertive conduct t is not hearsay when there is no intent, even if it implies the truth of the matter
Under State law, non-assertive conduct that implies the truth of the matter is hearsay
Note: see problem 3b: Kenworh and Maserati
Describe Wright v. Doe and the use of a letter to prove a guy is crazy
Issue: is a letter, when offered to prove competency, hearsay?
Answer: yes, it is just like writing “hey, you are competent” if used to prove the truth of the matter
Note: under FRE not hearsay since the letter only implies competency and the parties did not “intend” to assert competency
Why are letters hearsay?
They are verbal assertions between parties where there is assertive conduct
What is negative hearsay and is it generally admitted?
Negative hearsay is like a non-complaint….”no one ever told me this”
Negative hearsay is generally admitted because the person testifying has firsthand knowledge
What happened in Cain v.George regarding non-complaint?
Issue: is a hotel manager’s testimony that “no one ever complained” hearsay when used to prove there was an accident fall/no negligence
Holding: Not Hearsay because: such testimony merely related the knowledge of the motel owners as to whether anyone was ever harmed by the heater
What is indirect hearsay and is it generally admitted?
When a person cannot have firsthand knowledge of any of the facts set out in the answer.
Example: I don’t know when my parents immigrated other than that they told me when.
Generally admitted…just to be fair.
Are machines and animals “declarants”
Under FRE: not declarants, but issue is reliability
–> Machines come in if:
……….1) in good condition
……….2) Someone can testify to accuracy
–> Dogs are not declarants and come in if accurate?
State Law:
–> might exclude dog evidence but generally not
How do you know if a non-human declarant is reliable?
1) if machine in good condition, if animal…predictable
2) testimony can show reliability
3) Would a RP find the Testimony to show reliability?
What are the 6 Non-hearsay uses in 801 (d)
o Impeachment
o Verbal acts
o Effect on listener or read
o Verbal objects
o Circumstantial evidence of state of mind
o Circumstantial evidence of memory or belief
o Independent logical significant (the magical 7th)
What is Impeachment
Two contradictory statements where one is not used to rebut the prior statement, but is instead used to prove a lack of credibility.
NEVER use to prove truth of the matter asserted
What is the Verbal Acts Exception?
If a verbal act produces an independent, legally signficant effect at the time it was spoken, it is not hearsay
What are some good examples?
Verbal Contracts, Ransom Demands, Perjury, Solicitation
What is non-hearsay use of Effect on Hearer or Reader?
letters and words can have a significant impact on a listener and reader’s actions.
This statements are usually used to show that a listener relied or acted on a statement rather than whether or not the statement is true
What are Verbal Objects
Definition–>Verbal Objects are not hearsay because there is no declarant or assertion
Test: things that are “unusual and distinct”
Use: not offered for the truth, but to prove a circumstance
Words are incidental to the unsual and distict quality that they posses (someone always says …OOOO SNAP)
What is the meaning of “unusual” and “distinct”
Unusual–> rare, not many out there
Distinct–> can it be distinguished from others like it? Does it have a chip on it or engraving?
Circumstantial Evidence of State of Mind: what about Anna Sofer’s will?
To prove loss of companionship
1) Ira is a jerk
- -> Circumstantial state of mind showing that Anna did not
2) 1 dollar to Ira
- -> circumstantial state of mind showing she only values companionship as a dollar
- -> Verbal Act, a will creates an indepedendently significant legal act
