Introduction to Hearsay

Question 1

Viewing Evidence Critically and how to question information

Answer 1

Perception
Memory
Clarity
Sincerity

Question 2

First Hand Reports Can Be Problematic

Question 3

Second Hand Reports can be Problematic

Answer 3

Cannot Cross examine the original reporter or observe their demeanor. You can only go on what that person reports the first person said. It is a declarant making a statement about another declarant.

Question 4

What does Rule 802 state?

Answer 4

FRE 802. The Rule Against Hearsay.
Hearsay is not admissible unless any of the following provides otherwise:
● A federal statute;
● These rules; or
● Other rules prescribed by the Supreme Court.

Question 5

What is Hearsay?

Answer 5

FRE 801. Definitions That Apply to This Article; Exclusions from Hearsay
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) The declarant does not make while testifying at the current trial or hearing; and
(2) A party offers in evidence to prove the truth of the matter asserted in the statement.

Question 6

Why should we combine Rule 602 with Rule 801 (b)?

Answer 6

because 602 allows witnesses to testify only about things they personally know. Combining these rules: Rule 801(b) defines declarant as the person who made the statement based on personal knowledge.

Question 7

How does Rule 801 (c) distinguish between speaking at a trial or outside of the courtroom?

Answer 7

2. Declarants & Witnesses
   ● A declarant who testifies at a trial or hearing is a witness; a declarant who speaks outside the courtroom is just a declarant.
   ○ In other words, all witnesses are declarants, but declarants are witnesses only when they testify under oath at a trial or hearing.

Question 8

what is a declarant and a witness?

Answer 8

A declarant is a person who has first hand information about a fact relevant to the lawsuit. If the declarant offers that information while testifying at trial, the statement is NOT hearsay. However if the declarant makes a statement based on that information outside the courtroom, and someone repeats the statement at trial, it is hearsay. ,

Question 9

Policy reasons for Hearsay?

Answer 9

● Hearsay stems from one simple idea: firsthand reports are more reliable than secondhand ones.
○ Firsthand statements allow testing of the speaker’s perception, memory, clarity, and sincerity, whereas secondhand statements do not.
○ Secondhand reports eliminate effective cross-examination and credibility assessment.
○ A courtroom witness who reports information secondhand swears only to the truth of what she heard, not to the truth of what the firsthand reporter said.
○ A factfinder can better evaluate the confidence and sincerity of the information if they can watch the individual report it firsthand.

Question 10

5 questions to ask about every piece of potential hearsay?

Answer 10

○ Does the evidence contain a statement?
○ Did the statement occur outside the courtroom?
○ Is the party offering the statement to prove the truth of the matter asserted?
○ Does an exception apply?
○ Does the 6th Amendment limit the use of the statement?

Question 11

Example for Hearsay Statements

Answer 11

● Hearsay requires a statement, made by a declarant in a context other than testimony at the current trial or hearing, offered to prove the truth of the matter asserted.
● Yes/No statements are not hearsay.
○ Ex: Did Marty tell you the house was on fire?
■ This is perfectly fine.
○ Ex: “Marty told me the house was on fire.”
■ This is hearsay.

Question 12

What are examples of a statement made by a declarant out of court that are permissible if it is being offered to prove something OTHER THAN the truth of the matter?

Answer 12

○ Ex: A statement made by a declarant offered to prove that the declarant was alive at the particular time would not be hearsay.
○ Ex: A wife killed her husband. At trial she claimed self-defense. The wife states, “he told me that if I came home late again i’d pay dearly.”
■ This is being offered to prove her self-defense claim, not that the husband would actually make the wife pay if she came home late.

Question 13

A. The Rule
● Examples of common purposes for out-of-court statements that do not depend on the truth of the matter asserted include:

Answer 13

○ Knowledge - The defendant in a personal injury case might have mentioned to a neighbor that a dangerous condition existed on his property. The statement is hearsay if offered to show that the condition existed, but not hearsay if offered simply to show the defendant’s knowledge.
○ Notice to a listener - In a medical malpractice action, a nurse might testify that she heard the surgeon explain the risks of surgery to the plaintiff, showing that the patient was fully aware of the dangers.
○ Publication in a defamation case - To recover for defamation, the plaintiff must prove both that the defendant made a defamatory statement and that at least one other person heard or read the statement. The statement need not be true; indeed, the plaintiff claims that it was false.
○ Effect on the listener - If the defendant in a prosecution for menacing said to a victim “I hid a dozen venomous rattlesnakes in your house,” it doesn’t matter whether the defendant really hid the rattlesnakes. The elements of this crime require only that the defendant make the statement and the words give the victim a reasonable fear of bodily injury.
○ Legally binding statements - In a contract case, the fact that the defendant said “I accept” is relevant to prove that he agreed to a contract.
■ Similarly, in a trespass case, the fact that a property owner said “I give you permission to come onto my property” is relevant to prove that the defendant entered with consent.
● The truth of these statements doesn’t matter; even if the speaker was lying, the words establish acceptance or consent.