Hearsay: which statements are Hearsay and which are not

Question 1

What is Hearsay?

Answer 1

An out-of-court statement offered to prove the truth of the matter asserted

Question 2

What are three (good) reasons to exclude Hearsay?

Answer 2

1) Absence of cross-examination….most important due to confrontation clause
2) Absence of demeanor/crediblity evidence
3) no oath

Question 3

What are the Four Hearsay Risks?

Answer 3

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

Question 4

How does FRE 801: Hearsay differ state hearsay rules?

Answer 4

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

Question 5

What is a statement?

Answer 5

Rule 801(a): Statements can be either assertive or non-assertive but still must imply or have an intention

Question 6

What is Assertive Conduct that would be a statement under FRE 801(a)?

Answer 6

Any nonverbal conduct of a person “if intended” as assertion

Ex: shrug, nod, thumbs up

Question 7

What is non-assertive conduct, and is it hearsay?

Answer 7

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

Question 8

Describe Wright v. Doe and the use of a letter to prove a guy is crazy

Answer 8

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

Question 9

Why are letters hearsay?

Answer 9

They are verbal assertions between parties where there is assertive conduct

Question 10

What is negative hearsay and is it generally admitted?

Answer 10

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

Question 11

What happened in Cain v.George regarding non-complaint?

Answer 11

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

Question 12

What is indirect hearsay and is it generally admitted?

Answer 12

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.

Question 13

Are machines and animals “declarants”

Answer 13

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

Question 14

How do you know if a non-human declarant is reliable?

Answer 14

1) if machine in good condition, if animal…predictable
2) testimony can show reliability
3) Would a RP find the Testimony to show reliability?

Question 15

What are the 6 Non-hearsay uses in 801 (d)

Answer 15

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)

Question 16

What is Impeachment

Answer 16

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

Question 17

What is the Verbal Acts Exception?

Answer 17

If a verbal act produces an independent, legally signficant effect at the time it was spoken, it is not hearsay

Question 18

What are some good examples?

Answer 18

Verbal Contracts, Ransom Demands, Perjury, Solicitation

Question 19

What is non-hearsay use of Effect on Hearer or Reader?

Answer 19

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

Question 20

What are Verbal Objects

Answer 20

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)

Question 21

What is the meaning of “unusual” and “distinct”

Answer 21

Unusual–> rare, not many out there

Distinct–> can it be distinguished from others like it? Does it have a chip on it or engraving?

Question 22

Circumstantial Evidence of State of Mind: what about Anna Sofer’s will?

Answer 22

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