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Question 1

What are the three main elements of hearsay?

Answer 1

– out of court
– statement
– offered for the truth of the matter asserted

Question 2

What is required in the out of court element for hearsay?

Answer 2

The declarant didn’t make the statement while testifying at the current trial or hearing

Question 3

At trial A testifies that B told her he saw a D hit P. Is that hearsay?

Answer 3

Yes, because A is an in court witness that is repeating an out of court statement of B. A is the witness, and B is the declarant. The problem is the C didn’t see P get hit, so the defense cannot cross-examine her about it, and the jury can’t watch the demeanour of B who actually saw it

Question 4

Anytime a witness relates the substance of what someone else told her out of court, what is implicated?

Answer 4

Hearsay.

***Watch out: that doesn’t mean hearsay is violated, it is just implicated.

Question 5

Is this statement hearsay? “My roommate came home and told me that D hit P.“

Answer 5

Yes

Question 6

Is this hearsay? “I came home and told my roommate that D hit P.“

Answer 6

Yes

Question 7

Is this hearsay? “I testified at the deposition that D hit P.“

Answer 7

Yes

Question 8

Is this hearsay? An email to the roommate that says, “I saw a D hit P.“

Answer 8

Yes, this is double hearsay because the email itself is hearsay, plus the statement in the email is hearsay

Question 9

Who is the declarant?

Answer 9

Person that made the statement

Question 10

If a document is offered in court, does that always implicate hearsay?

Answer 10

Yes

Question 11

If a letter is written by A to C that says, “I had lunch with B yesterday.“ Is that hearsay?

Answer 11

Yes because the letter itself is an out-of-court statement because it was written out of court

Question 12

Anytime you are asking about the contents of a document, what is that in relation to hearsay?

Answer 12

Multiple layers of hearsay since the document itself is an out-of-court statement, and the content of the document is a second level of out-of-court statement

Question 13

If a witness repeats her own out of court statement, is that hearsay?

Answer 13

Yes because the witness wasn’t in the court under oath and subject to cross-examination when the statement was made. Instead of the witness saying what she previously said, she should just tell the court what she saw

Question 14

Is it hearsay for a witness to repeat something that she testified about in court at an earlier hearing?

Answer 14

Yes, because it wasn’t at the current trial or hearing. If the witness wants to talk about it, she should just say what she saw, not what she previously testified to

Question 15

What is considered to be a statement for hearsay?

Answer 15

A person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion

Question 16

What is assertive conduct?

Answer 16

Conduct isn’t a statement unless it was intended by the actor to substitute for a statement. Most conduct doesn’t count as this because we don’t intend for it to be a substitute for an oral or written assertion

Question 17

If witness testified that she saw defendant open his umbrella, would that be assertive conduct?

Answer 17

Only if this act was intended to say, “I do not want to get wet.“ In reality the person was probably not thinking he wanted everyone to know he didn’t want to get wet, he was just trying not to get wet

Question 18

What is the test to determine assertive conduct?

Answer 18

Whether the person intended his actions to be a substitute for a statement.

Question 19

What are actions that are usually determined to be assertive conduct?

Answer 19

Pointing, winking, nodding, or gesturing

Question 20

If a witness testifies that when asked which car ran the red light, the guy pointed to the blue car, was that assertive conduct?

Answer 20

By pointing, he probably intended it to be a substitute for an oral assertion that the blue car ran the red light. He simply used a gesture instead of words

Question 21

If a witness is asked at trial who caused the accident, and she points to the defendant, would that be hearsay?

Answer 21

No, because it wasn’t an out-of-court statement, it happened in court (even though it was assertive conduct)

Question 22

In a paternity suit if the witness testified, “when mom was asked to identify the father of the kid, she pointed to the defendant.” Would that be hearsay?

Answer 22

Yes because the statement was made by her assertive conduct out of court and offered for its truth

Question 23

Is silence usually considered to be assertive conduct?

Answer 23

No

Question 24

If a witness testifies that he saw 1000 people walk on a certain sidewalk and never saw anyone complain about the condition of the sidewalk, would that be considered assertive conduct from those people?

Answer 24

You must ask if those 1000 people all intended to tell someone that they liked the condition through their act of walking on it. That is unlikely, so this would not be assertive conduct

Question 25

If a train conductor said that the other 30 passengers did not complain about the cold, so they must not have been cold is that sort of conduct?

Answer 25

No, because they didn’t say to themselves that they were happy about the temperature and choosing not to complain to send a message that they were comfortable

Question 26

Is running away usually considered to be assertive conduct?

Answer 26

No

Question 27

Can animals make statements?

Answer 27

No, only humans can make statements for hearsay purposes

Question 28

If a police dog alerts, and a police officer testifies about it, is that hearsay?

Answer 28

No the cop is testifying to his personal observation about the sounds he heard the dog make, not to a statement that someone else made

Question 29

Can machines make statements for hearsay purposes?

Answer 29

No, only humans can make statements for hearsay

Question 30

If a cop testifies about a radar gun readout, is that hearsay?

Answer 30

No, he is just recounting what he personally saw on the readout of a gun display, he isn’t repeating an out of court statement of the radar gun

Question 31

What other things are included in machines that cannot make statements?

Answer 31

Radar guns, video camera footage of someone committing a crime, time printouts of breathalyzers, etc.

Question 32

Why is video camera footage of someone committing a crime not considered to be hearsay?

Answer 32

Because the camera is a machine, so it cannot make a statement

Question 33

Why is a time print out of a breathalyzer not considered to be hearsay?

Answer 33

It is just printed words from a machine, and machines cannot make statements

Question 34

To prove the temperature on May 10, if the defendant offers hand written records of a climatologist of temperatures he measured with fancy equipment, would that be hearsay?

Answer 34

Yes, because it wasn’t the machine that made those records, it was handwritten records recording what the machine said. Because a human wrote those notes, the human decided what to write, and thus it would be hearsay

Question 35

If you take a photo of a car’s license plate and offer it to prove the license number, would that be hearsay?

Answer 35

No, because pictures are not statements

Question 36

What is involved in the “offered for the truth of the matter asserted” element of hearsay?

Answer 36

It must always be asked what the evidence is being offered to show. If what is said is being offered to show that the thing is true, then it is being offered for its truth

Question 37

If A says, “Bob told me he saw D hit P.“ What is that trying to prove?

Answer 37

It is trying to prove that D hit P. This always comes back to relevance - in order to avoid this being hearsay, you must ask how this statement is relevant other than because we are asked to rely on Bob‘s assertion that D hit P. If you can’t think of any other reason, it is probably offered as evidence that the thing it asserts is true

Question 38

If a statement is offered to show something other than its truth, is that hearsay?

Answer 38

No, that is non-hearsay

Question 39

What is nonhearsay?

Answer 39

An out-of-court statement offered to show something besides the truth of the matter. This is relevant regardless of whether the substance of the statement is true, so it is not hearsay to begin with