Intro to Hearsay Flashcards
1
Q
What is hearsay?
A
- Hearsay is (1) a statement (2) by a human declarant, (3) other than one made while testifying at trial, (4) offered to prove the truth of the matter asserted.
2
Q
Is hearsay generally admissible?
A
- No, hearsay is generally inadmissible when offered for its truth, unless the statement falls within an exclusion or exception
3
Q
Why is hearsay generally inadmissible?
A
- Because the opponent has no opportunity to cross-examine the declarant in front of the finder of fact (the jury). Otherwise, the statements would come in for their truth without a challenge to their credibility.
- The ability to challenge the declarant’s perception, memory, sincerity, and ability to relate to what the witness is testifying to are the cornerstones of trustworthiness. Without this opportunity to test these factors before a witness has had an opportunity to contemplate their testimony, the likelihood of truthful testimony decreases dramatically.
4
Q
What constitutes a statement under the hearsay rule?
A
- A statement is either:
o an intentional oral or written assertion; or
o intentionally assertive conduct. - EXAMPLES:
o Pointing a finger to give directions - YES.
o Shaking a head yes or no - YES.
o A sketch by a police artist of defendant as described by victim - YES.
o A videotape showing defendant’s demeanor; drunk or stumbling - NO.
5
Q
Who constitutes a declarant under the hearsay rule?
A
- The declarant is the person making the statement. The statement must be by a human declarant, not one made by an animal or machine.
- EXAMPLES: (Not hearsay)
o alarm clock;
o church bell chiming;
o radar measuring speed of car;
o printout of wind speed
o computer printout even though it processes human input; or
o time/temperature display. - NOTE: The in-court witness NEED NOT be the declarant.
6
Q
What does it mean for hearsay to prove the truth of the matter asserted?
A
- Ask - Does the proponent need the substance of the statement - the actual words spoken - to be believed for the testimony to be relevant?
7
Q
What is non-hearsay?
A
- Out-of-court statements which are NOT offered for the truth of the matter asserted. Non-hearsay may be admitted as substantive evidence, but only for a limited purpose.
o EXAMPLE: Defense Witness testifies, “I heard Defendant say, “Joe’s got a gun and he’s going to shoot!” This is offered for limited purpose of explaining why Defendant punched Joe and may not be admissible as substantive evidence – that Joe, in fact, had a gun and was going to shoot.
8
Q
What are the six limited purposes for admitting non-hearsay evidence?
A
- Sensory capacity
- Effect on the listener
- Legally operative facts
- Verbal acts
- Impeachment
- State of mind
9
Q
How could non-hearsay be admitted to prove sensory capacity?
A
- An out-of-court statement offered, not for its truth, but to show that the declarant was able to see, smell, hear, speak, understand a language, etc.
o EXAMPLE: Witness testifies, “I heard Joe say, “Those red roses smell nice,” offered to prove that Joe could speak or speak English or see or smell.
10
Q
How could non-hearsay be admitted to prove effect on the listener?
A
- An out-of-court statement offered, not for its truth, but to show what the listener knew or to explain their motive, intent, actions, etc.; the focus is NOT on the declarant, but on the listener.
o EXAMPLE: Defense Witness testifies, “I heard Defendant say, “Joe’s got a gun. Duck.” This is offered to explain why Defendant punched Joe.
11
Q
How could non-hearsay be admitted to prove legally operative facts?
A
- An out-of-court statement offered, not for its truth, but because merely speaking those words had some legal significance.
o EXAMPLE: Transactional words like the words of a contract, deed, or will, defamatory words, words of notice.
o EXAMPLE: In slip and fall case, Witness testifies, “I heard an announcement over the store speaker, “Clean-up to Aisle 5, spilled mayonnaise,” offered to show the store was aware of a slippery substance on the floor; doesn’t matter whether it was mayo or olive oil. Also, admissible to show that the plaintiff knew of a slippery substance on the floor and was perhaps contributorily negligent in not avoiding it.
12
Q
How could non-hearsay be admitted to prove verbal acts?
A
- An out-of-court statement offered, not for its truth, but to clarify ambiguous conduct.
o EXAMPLE: W testifies she saw Declarant hand Plaintiff a $100 dollar bill and say, “Here. I’ll never borrow a dime from you again,” offered as evidence of paying off a debt, rather than the money being a loan, gift, or cash found on the ground.
13
Q
How could non-hearsay be admitted for impeachment?
A
- Impeachment evidence (and rehabilitation evidence) is not offered for its truth, but for the limited purpose of challenging or rehabilitating a witness’s credibility.
o EXAMPLE: In an auto tort case, the witness testified D ran the red light and is impeached with a PINS in which the witness said P ran the red light. The out-of-court statement that P ran the red light (the PINS) is not evidence that P ran the red light (evidence of contributory negligence), but merely that having said different things, the witness should not be believed.
14
Q
How could non-hearsay be admitted to prove state of mind?
A
- An out-of-court statement offered, not for its truth, but as circumstantial evidence of the declarant’s state of mind (as opposed to the state of mind hearsay exception).
o EXAMPLE: Witness testifies Declarant said, “I can fly,” offered in an insanity hearing to show Declarant’s insanity, not his ability to fly.
o EXAMPLE: In a suit by Decedent’s spouse to compel insurance company to pay death benefit where decedent fell to his death from a building, insurance company witness testifies Declarant said, “I can fly,” just before jumping to show death was suicide, not covered by policy.
