Not Hearsay (By Definition) Flashcards
NOT Hearsay
A statement is NOT hearsay when it is offered for any OTHER purpose than the truth of the matter stated.
For example:
- Impeachment
- Verbal acts
- Effect on the listener
- State of mind of the declarant
- Memory or belief
NOT Hearsay: Impeachment
- When you confront a witness w/ a prior statement (that is clearly different than the one given on the witness stand), the point is to show the witness does not know what he is talking about
- Not trying to show the truth of that prior statement. You are just trying to show this witness cannot get his story straight, and should not be trusted as a witness.
NOT Hearsay: Verbal Acts
A statement may be an operative fact which gives rise to legal consequences (words themselves are the crime or tort involved, so you have to prove up the words spoken out of court!) Don’t care if you intended the words to be true, only care if words were spoken (and will always be spoken in the past tense).
Examples:
- Solicitation (speaking the words, not your intent, is the crime)
- Defamation
- Slander
- Verbal contracts
- Lies are not hearsay - Lying to police officer to cover up another’s crime is likely to be itself a crime, so behavior may be viewed as a verbal act
- Letter can be a verbal act (for ex, if terminating a contract)
NOT hearsay – Verbal Parts of Acts
Words accompanying a physical act may resolve ambiguity in the intent of the act. Act does not make sense without the words, let the words in to help clarify.
- Ex. Hand $20 to your friend, then say I give this to you – words resolve the issue as to whether the act of handing the $20 to the friend is a gift or a loan. Words make up the verbal part of the act of transferring money and will not be hearsay.
NOT Hearsay – Effect on Listener or Reader
A statement is not being offered to prove its truth. The statement is offered to show how a listener reacted to the statement and what his emotional state is based on listening to the statement.
Elements:
- Person hears a statement
- Person has an emotional or intellectual response to that statement; and
- That response is relevant to the case
Examples:
- Fear (relevant to self defense)
- Knowledge (relevant to notice of a dangerous condition - i.e. knew brakes were bad)
- Emotion (relevant to pain/suffering)
- Duress
- Thought area was safe to walk in because with man from gas company
NOT hearsay – State of Mind of Declarant
A statement is not being offered to prove the truth. The statement is offered to show the emotional or intellectual state of the person who made the statement.
Elements:
- A declarant makes a statement
- Makes the statement due to his emotions or intellect at the time he made the statement; and
- That emotion or intellect is relevant to the case
Examples:
- Sanity
- Knowledge
- Fear
Ex. Will showed how she felt about husband/what she was thinking
Signals that talking about state of mind:
- Testamentary capacity
- Assume risk
- Good faith
- Acting reasonable
Betts v. Betts
- Declarant state of mind case
- Custody proceedings. Child makes statement that he feels his father is a murderer.
- Can statement come in? Child not on witness stand.
- NOT hearsay b/c try to show state of mind of the child. What are the best interests of the child needs to be considered. If child fears parent, and living in fear all the time – that is relevant.
- Not trying to show that the parent is actually a murderer, just that child believes parent is a murderer.
NOT Hearsay: Non Assertive Conduct
- Simply taking foot off of break is not an assertion that the light is green and would not be hearsay
- Handing money over
- Courts have found that absence of complaints is not assertive conduct, and therefore would not be hearsay (would be admissible)
NOT Hearsay by definition
- Non Assertive Conduct
- Machines & Animals
- Impeachment
- Verbal Acts
- Effect on Listener
- State of mind of Declarant
NOT Hearsay - Machines/Animals
Declarant which is not a person (is a machine/animal) - not hearsay.
Ex. Machine read-out of blood alcohol content is not hearsay. Let in.
Cain v. George
Motel – boy died of carbon monoxide poisoning. Defense wants to put in that no one had complained to the owners of the motel before. Absence of complaints are allowed in (not hearsay).
