Non-Hearsay Uses of Out-of-Court Statements

Question 1

Barney Case

Answer 1

• the out-of-court statement = the children’s cries (principal and parents act as witnesses
• for newspaper article, reporter = declarant
• neither of these are hearsay because both sides agree that the underlying statement is not true (it is not Barney) -> therefore, not being used to prove the truth of the matter asserted (it’s being used to prove that people get confused)

Question 2

Subramaniam

Answer 2

• Man kidnapped by terrorists - didn’t matter if they meant what they said, what mattered is the effect on the defendant’s (listener’s) state of mind
• truth/falsity of the statements irrelevant to his defense

Question 3

United States v. Feliz

Answer 3

• coerced confession (police officers threatened to deport defendant’s mother)
• defendant’s mother testifies to their statements -> defense can argue re effect the statements would have had on the listener (defendant), + she can be called as long as she heard the statements
• even though defendant himself not called, can still argue effect on listener

Question 4

Campbell v. Boston Scientific Corp.

Answer 4

• BSC used a material whose product safety warning said shouldn’t use in medical apps involving permanent implantation into human body
• safety warning allowed b/c not being used to prove truth of statement, just being used to prove BSC had notice of manufacturer’s concern + knowledge of potential safety issues

Question 5

United States v. Parry

Answer 5

• defendant tells mother that he’s on phone with federal agent (argued he thought he was working for fed agents + helping them find local drug dealers)
• her testimony is allowed in b/c just being offered to prove his state of mind, not truth of whether person on phone was a fed agent

Question 6

Words of Operative Conduct

Answer 6

• Saavedra case (credit card fraud, posed as law enforcement) - the statements are part of the fraud + prosecutor is entitled to prove the crime
• the mere fact of the words being uttered is evidence of the crime
• also applies to defamatory statements
• fact of its being said matters more than the truth of the statement

Question 7

Performative Utterances

Answer 7

• words whose legal effect flows from merely saying them
• ex: state in which you could verbally cancel an insurance contract

Question 8

United States v. Montana

Answer 8

• performative utterance example
• “it’s going to be $10,000 for the favorable testimony” - not hearsay because it’s a demand (setting a price within their contract, committing speaker to course of action)
• vs. “your father promised me $10,000” would be hearsay b/c would depend on truth of statement
• WORDING MATTERS

Question 9

Hearsay Reminders

Answer 9

• be aware of precise wording of statement - how it is worded can influence whether or not it is offered for the truth of the matter asserted and is therefore hearsay
• many statements offered for non-hearsay purposes could also go to truth of the matter asserted, but can’t because of hearsay -> judge is supposed to limit their use to the particular purpose, but jury may not always listen (and litigators often hoping they won’t when offering the evidence)

Question 10

Summary of Non-Hearsay Uses of Out-of-Court Statements

Answer 10

• declarant’s reaction to an event
• listener/defendant’s state of mind
• notice to defendant
  declarant’s state of mind/knowledge
• verbal act/words of operative conduct
• performative utterances

Question 11

Words of Operative Conduct vs. Performative Utterances

Answer 11

-WOC usually used with fraud or defamation - party offering it usually wants the statement NOT to be true
- vs. for performative utterances, the statement makes itself true - legal effect flows from the statement the moment the words are spoken (ex: by saying the price is x, x becomes the price of perjury)