Introduction to Hearsay, Continued Flashcards
What Rule defines statement as an assertion that can be make with or without words
THE RULE
FRE 801. Definitions that Apply to this Article; Exclusions from Hearsay.
(a) Statement. “Statement” means:
● A person’s oral assertion;
● Written assertion, or
● Nonverbal conduct,
If the person intended it as an assertion.
Difference between assertive and Non assertive conduct?
The court must look at the context to see if the declarant intended to assert a fact through their actions;
examples: ○ Ex: The outcome of a personal injury lawsuit turns on whether it had started raining by 6 P.M. on April 2. The parties vigorously contest this issue. Wilbur, a witness for the plaintiff, testifies that Dora visited him at 6 P.M. on April 2 and he asked Dora whether it was raining outside. In response, Wilbur testifies, “Dora said nothing but shook a wet umbrella at me.” The defendant objected to this testimony as hearsay.
■ Wilbur’s testimony contains hearsay. Although shaking an umbrella is usually not an assertion, the action carried an assertive meaning in this context. In response to Wilbur’s question, Dora’s action was equivalent to the verbal statement, “Yes it’s raining, you fool - that’s why I’m carrying an umbrella.” Dora made this assertion outside the courtroom, and Wilbur is offering the assertion as proof of the matter asserted (that it was raining).
Implicit Assertions, Example
● Stevenson v. Commonwealth - Keller was stabbed to death on December 2. Police discovered a wallet containing John Stevenson’s driver’s license that was lying near Keller’s body. A few days later, police officer Shultze visited the address printed on the license. Stevenson was not home, but Schultze spoke with Stevenson’s wife. He asked Mrs. Stevenson gave him the clothing that Stevenson had been wearing on December 2. Mrs. Stevenson gave Schutlze a pullover shirt. Laboratory tests showed bloodstains on the shirt that were the same general type as the victim’s blood. The stains, however, were too small to allow more precise typing.
○ The shirt was not hearsay, but Mrs. Stevenson’s conduct in handing over the shirt was. Mrs. Stevenson gave Shutlze the shirt in response to his request for clothing that Stevenson had worn on December 2. Under those circumstances, Mrs. Stevenson’s silent gesture of handing over the shirt included the implicit assertion: “This is the shirt that John Stevenson wore on December 2.” This implicit assertion occurred outside of court, and the state offered it for the truth of the matter asserted (that John did wear the shirt that day).
● Stevenson differs from when police officers seize evidence from a defendant’s home because police officers who find certain items in the defendant’s home, testify about their own actions. They do not quote third parties.
Rule 801 (d) defines two out of court statements as NOT hearsay. This is a distinct type of hearsay. These are called exemptions to be able to differentiate from the other (exceptions)
○ Prior statements by witnesses; and
○ Statements made by opposing parties.
What does Rule 804 recognize?
● Rule 804 recognizes five exceptions to the hearsay rule which apply only if the declarant is unavailable to testify in court.
Tell me about Rule 803 and how many exceptions to HR?
● Rule 803 lists 23 different exceptions to the hearsay rule which apply regardless of if the declarant is available to testify.
What does Rule 807 do?
● Rule 807 creates a residual exception that allows courts to admit some statements that fall outside the other 30 exceptions but have similar guarantees of trustworthiness.
