Short and Happy Guide Chapter 6: Hearsay Flashcards
1
Q
________ refers to an out-of-court statement.
A
Hearsay
2
Q
The foundation of the _______ rule is that out-of-court statements generally should not be used, unless there is a likelihood that the statements are accurate.
A
hearsay
3
Q
The reliability of out-of-court statements has to do with the degree to which believing the evidence requires unsupported reliance upon the four things we call the __________ _______ of the person making the statement.
A
testimonial capacities
4
Q
Testimonial capacities are known as:
1.
2.
3.
4.
A
- Sincerity
- Perception
- Narration
- Memory
5
Q
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe she lied (she wanted you to get into trouble).
A
Sincerity
6
Q
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe her vision was bad (she thought she saw you but she actually saw someone else that looked like you).
A
Perception
7
Q
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe she said it was you (but she really meant to say Bob).
A
Narration
8
Q
By way of example, consider Tina’s statement about stealing cash from the cash register. Let’s examine the testimonial capacities in light of her hearsay statement:
Maybe she lied (she wanted you to get into trouble).
A
Memory
9
Q
In theory, when statements that would otherwise be excluded under the hearsay rule are admitted, they are admitted on the basis that the exceptions have “safeguards” against these testimonial capacities’ proclivities for inaccuracy. True or False.
A
True
10
Q
Step 1: Determine whether the evidence is a ________ as defined by Rule 801(a).
If YES, then goto step 2. If NO, then the evidence is not hearsay. Therefore, it is not excluded under the hearsay rule.
A
statement
11
Q
Step 2: Was the statement made at the _____ ____ or ______? FRE 801(c)(1)
If NO, then go to step 2. If YES< then the evidence is not hearsay.
A
current trial or hearing
12
Q
Step 3: Is the statement being offered to prove the ________ of the ______ _______ in the statement?
If YES, then go to step 4. If NO, then the evidence is not hearsay.
A
truth of the matter asserted
13
Q
Step 4: Does the statement meet one of the definitions of “______________” in Rule 801(d)(1)-(2)?
If NO, then go to step 5. If YES, then the evidence is not hearsay BECAUSE the rule says it is not.
A
non-hearsay
14
Q
Step 5: Does the statement meet an ______ to the rule excluding hearsay? FRE 803, 804, 807.
If NO, then go to step 6. If YES then the evidence is NOT EXCLUDED by the hearsay rule.
A
exception
15
Q
Step 6: The statement will be _______ by the hearsay rule. FRE 802. STOP
A
excluded
16
Q
The starting point on any analysis is the determination of whether a particular pice of evidence is _________ by using the definition in the rule.
A
hearsay
17
Q
The Rule Against Hearsay.
What rule?
A
FRE 802
18
Q
This rule provides that hearsay is not admissible unless one of a number of conditions is met.
A
FRE 802
19
Q
The starting point is whether the piece of evidence is __________ as defined by FRE 801.
A
hearsay
20
Q
The starting point is whether the piece of evidence is hearsay as defined by FRE 801. Next, if it is hearsay, you must determine whether one of the conditions is met that would permit its admission. Rule ______ tells us that hearsay will not be admissible unless any of the following provide otherwise:
1.
2.
3.
A
802
- federal statute
- federal rules of evidence or
- other rules prescribed by the Supreme Court
21
Q
Before you can determine what is NOT hearsay, you must determine what is hearsay. !!
A
!!
22
Q
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1. ?
2.
3.
4.
If all four of these requirements are not met, then the statement is not considered Hearsay.
A
- It must be a statement FRE 801(a)
23
Q
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1.
2. ?
3.
4.
If all four of these requirements are not met, then the statement is not considered Hearsay.
A
- The statement must have been made by a declarant FRE 801(b)
24
Q
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1.
2.
3. ?
4.
If all four of these requirements are not met, then the statement is not considered Hearsay.
A
- The statement must have been made out of court FRE 801(c)(1) AND
25
At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
1.
2.
3.
4. ?
If all four of these requirements are not met, then the statement is not considered Hearsay.
4. It must be offered for the truth of the matter asserted in the statement. FRE 801(c)(2).
26
Rule 801(a) defines a statement as a ________ oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
person's
27
Rule 801(a) defines a statement as a person's _______ ________, _______ _______, or ________ ________ if the person intended it as an assertion.
oral assertion
written assertion
nonverbal conduct
28
Rule 801(a) can be broken down into three parts:
1.
2.
3.
1. Who made the statement?
2. What kind of statement is it? and
3. Is it intended as an assertion
29
Rule 801(a) the first inquiry, who made the statement? is usually easy to ascertain. The "who" must be a person and this person is what the rule calls a _______.
declarant
30
Rule 801(b) defines the _________ as the person making the statement in question.
declarant
31
Rule 801(b) defines the declarant as the person making the __________ in question.
statement
32
Assume Officer Jones wrote a police report. The report said that Sam, the victim, told Officer Jones that "The truck rear-ended me." At trial, Officer Jones testifies as to what Sam told him at the scene of the accident.
Who is the declarant
The declarant is Sam, not the police officer.
We are concerned with who made the statement being offered. In this case, Sam's statement, "The truck rear-ended me." Is being offered, so he is the declarant under 801(b).
33
What about a parrot?
A parrot, that repeats what a human said, cannot produce hearsay.
34
What about a printout? It comes from a computer, doesn't it? And a computer clearly isn't a person. But the answer depends on the _______ of the information.
source
35
Consider a spreadsheet that reflects data entered by a person. yes, it's still a printout but it was generated by a person and the printout reflects the statement of the person. The spreadsheet would be considered a ________ by a person.
statement
36
Automated Printouts: maybe a stock report or measurements from a weather station; or a list of telephone calls made from a particular phone number. These examples would or would not be considered statements?
WOULD NOT
They do not come from a person as required by the rule.
37
The next inquiry is "What kind of statement is it?" One can usually discern whether we are dealing with an _______, _______ or _______ ________. The more difficult part is discerning whether the statement meets the final requirement of 801(a), which we discuss next.
oral,
written,
non-verbal communication
38
The last requirement of this part of the rule is that the statement be intended as an _________.
assertion
39
Determining whether an _______ has been made can be challenging.
assertion
40
An ____________ is an intent to communicate something.
assertion
41
Do not make the mistake of thinking that questions can never be assertions. Some questions, particularly rhetorical questions, do not seek information but rather, are intended to be _________.
assertions
42
If Tom says, "I saw the dog bite the child," then the assertion intended by Tom is pretty clear.
What is it?
He is trying to convey what he saw.
43
If Tom says, "What time is it?"
Is this an assertion?
NO, some might say that he is asserting that he does not know the time. But, that is incorrect. There is NO assertion here.
44
By definition, the determination of whether or not something is an assertion is _________.
subjective
45
The rule defines a statement as one in which the person _________ it to be an "____________"
intends
assertion
46
The bottom line of assertions is whether a _______ intended to ________ something.
person
communicate
47
Now, if you have determined that the evidence in question is a statement and have determined who the declarant is, the next step is to determine whether the statement was made ______ of the ______ ______ _______ where it is being offered. For this we turn to Rule 801(c)(1).
outside
current court proceeding
48
FRE 801(c)(1) provides that in order for the evidence to be hearsay, it must be a statement that was not made at the _______ ________ or _________.
current trial or hearing
49
Suppose there is a wreck involving two people at an intersection. Immediately after the wreck, a witness named Judy is standing next to her friend Cindy. The following dialogue occurs at the scene of the accident:
Judy: Did you see that? The little silver car just ran that red light and hit that truck.
Cindy: No, it didn't. The little silver car had the green light.
Scenario 1: At trial, Cindy is on the witness stand and says, "The light was green when the little silver car went through the intersection."
In Scenario 2, the statement contained in quotations would NOT meet the definition of a hearsay statement per FRE 801(c)(1) because Cindy made that statement at trial.
That is, Cindy testified as to what she personally observed at the time of the accident.
50
Suppose there is a wreck involving two people at an intersection. Immediately after the wreck, a witness named Judy is standing next to her friend Cindy. The following dialogue occurs at the scene of the accident:
Judy: Did you see that? The little silver car just ran that red light and hit that truck.
Cindy: No, it didn't. The little silver car had the green light.
Scenario 2: At trial, Judy is on the witness stand and says, "Cindy told me the little silver car had the green light."
However, In Scenario 2, Judy's statement is considered hearsay. Why? Because she is not testifying as to what she saw at the accident scene.
Rather, she is testifying as to what Cindy had told her at the scene.
So, Cindy's statement to Judy was not made at the current trial or hearing. Therefore, Cindy's statement meets the definition of 801(c)(1).
51
Suppose there is a wreck involving two people at an intersection. Immediately after the wreck, a witness named Judy is standing next to her friend Cindy. The following dialogue occurs at the scene of the accident:
Judy: Did you see that? The little silver car just ran that red light and hit that truck.
Cindy: No, it didn't. The little silver car had the green light.
Scenario 3: Cindy, a witness on the stand at trial says, "I told Judy that the light was green when the car went through the intersection."
It might seem like this would not meet the definition of hearsay since Cindy is testifying as to what she had told Judy at the time of the accident.
However, this IS considered a hearsay statement under 801(c)(1) because she was testifying at trial about her statement outside of court to Judy.
If Cindy had simply testified that she observed that the light was green when the silver car went through the intersection, her testimony would not be hearsay.
52
A few states view this concept of an out-of-court statement differently. If an out-of-court statement is repeated in court by the same person, then the statement will not be considered hearsay. This is NOT the practice in federal courts. !!
!!
53
Once it has been determined that a particular statement does in fact, meet the out-of-court statement requirements, you must then analyze whether the statement meets the final requirement under 801(c)(2): Whether the statement is offered for its _________.
truth
54
Rule 801(c)(2) provides that for a statement to be hearsay, it must be offered in evidence to _____ the truth of the matter asserted in the statement.
prove
55
Rule 801(c)(2) provides that for a statement to be hearsay, it must be offered in evidence to prove the ______ of the matter asserted in the statement.
truth
56
Scenario 3: Cindy, a witness on the stand at trial says, "I told Judy that the light was green when the car went through the intersection."
The critical question you must be able to answer is why a particular statement is being offered. Why would you be offering the statement from Scenario 3?
Suppose this is a lawsuit and your client has been sued for negligence.
A key fact might be the color of the light when your client drove through the intersection. If so, it is imperative that the color of the light, at the time your client drove through the intersection, be admitted to evidence. That color was green.
You would be offering the statement, "The light was green when the car went through the intersection." for ______ _________; the light was, in fact, green.
its truth
The color of the light is essential to prove the defense in a negligence case (that the light was, in fact, green), thus the statement is hearsay because it is being offered for the truth of the matter asserted.
57
Any case has certain fundamental issues:
1. ?
2.
3.
4.
1. If civil, the essential elements of the cause of action
58
Any case has certain fundamental issues:
1.
2. ?
3.
4.
2. If criminal, the elements of the crime charged
59
Any case has certain fundamental issues:
1.
2.
3. ?
4.
3. The elements of any defense or affirmative defense; and
60
Any case has certain fundamental issues:
1.
2.
3.
4. ?
4. The credibility of each witness.
61
Knowing why (the purpose) a particular statement is offered is essential to the determination of whether the statement is being offered to prove the substance of the statement. !!
!!
62
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1. ?
2.
3.
4.
5.
6.
1. To show the effect on the listener
63
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1.
2. ?
3.
4.
5.
6.
2. As a verbal act
64
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1.
2.
3. ?
4.
5.
6.
3. As verbal parts of an act
65
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1.
2.
3.
4. ?
5.
6.
4. For impeachment purposes
66
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1.
2.
3.
4.
5. ?
6.
5. As circumstantial proof of state of mind
67
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1.
2.
3.
4.
5.
6. ?
6. To prove knowledge
68
There are many reasons that a statement may be offered that have nothing to do with the truth of the matter asserted in the statement. There are six basic reasons (or purposes) that a statement might be offered for a reason other than the truth of the matter asserted:
1.
2.
3.
4.
5.
6.
1. To show the effect on the listener
2. As a verbal act
3. As verbal parts of an act
4. For impeachment purposes
5. As circumstantial proof of state of mind and
6. To prove knowledge
69
Suppose you are challenging the credibility of a witness. Consider the following scenario:
Scenario 4: Willy witnesses a shooting. After the shooting, he tells his friend Trent, “The shooter was wearing a grey sweatshirt and a baseball cap.”
At trial Wally testifies that the shooter was “wearing a green sweatshirt.”
Now you might want to offer the statement from Wally to Trent for a _______ ________. But suppose you want to demonstrate that Wally’s testimony about the shooter wearing a green sweatshirt is not to be believed. In that case, you would be offering the testimony to _______ the witness.
Maybe it was dark out, maybe Wally’s vision was not so great. Regardless of the reason, you want to demonstrate that the testimony of Wally at the trial (that the shooter was wearing a green sweatshirt) is inaccurate.
One way to impeach him is to demonstrate that he told someone outside of court something completely different.
This out-of-court statement, that the “shooter was wearing a grey sweatshirt” is being offered to impeach Wally. In that scenario, it is NOT hearsay because it is not being offered for the _____ of the _____ _______.
Different purpose
Impeach
Truth of the matter asserted
70
Suppose you represent a client who has a grandfather with mental faculties on the decline. You wish to get him help, but state law requires a finding of incompetency before the state will provide help. As your client’s lawyer, you must prove that your client’s grandfather has mental issues. As part of your case, you have evidence that each morning your client’s grandfather would walk outside of his home and greet passerby with a bow and introduce himself as King Henry, Iv. You might find this hard to believe, but your client’s grandfather is not King Henry, Iv. His name is John Anderson. At trial, you wish to introduce the testimony of a neighbor who would walk his dog every morning in front of John’s home. He will testify that every morning, John would bow and say, “Greetings from the Kingdom, I am King Henry, IV.” It is your position that the statement will provide some evidence as to John’s mental state.
Look at the rule and how we would analyze this statement.
The statement, “Greetings from the Kingdom, I am King Henry, IV” was made in front of John’s house which is outside of the current trial or hearing.
The next question is for what purpose is it offered? Is it offered for the truth of the matter asserted? If so, what is the assertion? The assertion that “I (John) am King Henry, IV.” So, if you are offering it for the truth of the matter asserted, you would be offering it to prove that John was, in fact, King Henry, IV. BUT you are NOT.
You are offering it to prove only that he made such a statement. Period. Therefore, it cannot be hearsay.
You are NOT offering it for the truth of the matter asserted. You are offering the statement because you want the court to find that John believed it.
If he believed the statement, it would constitute some evidence that he was mentally incompetent.
71
A statement can only be _________ if it is offered for the truth of the matter asserted.
hearsay
72
This is probably the easiest example of a statement offered for something other than the truth of the matter asserted.
To show effect on the listener
73
This is the easiest because the description means what it says. When offering a statement not for the truth of the matter asserted, but rather for the effect on the listener then by definition the statement is NOT ________.
hearsay
74
Suppose John walks into a bar holding a gun, points it at Darrell and says, "I'm going to kill you." Before John can pull the trigger, Darrell pulls a gun and shoots John. At Darrell's trial for the murder of John, he seeks to introduce the statement that John made. In this case, it is being offered not for its truth that John was going to kill Darrell. Rather, it is being offered to show the ________ on Darrell (the listener) that he was in fear of his life when he shot John (which would be important if he was pleading self-defense.)
effect
75
The term ______ _______ refers to statements to which the law attaches rights or obligations simply because they were spoken.
verbal acts
76
The term verbal acts refers to _________ to which the law attaches ______ or _______ simply because they were spoken.
statements
rights or obligations
77
Verbal Acts (Legally Operative Words) and Verbal Parts of an Act
The fact that the statement was made has legal significance; when statements are offered for their truth, the relevance of the statement is tied to its _________.
veracity
78
When a statement is offered as a _____ _____, whether or not it is true is irrelevant. The only thing that matters is whether or not the words were spoken.
verbal act
79
When a statement is offered as a verbal act, whether or not it is true is irrelevant. The only thing that matters is whether or not the _____ ____ _____.
words were spoken
80
The verbal part of an act consists of an act which includes both a _______ part and a ______ part.
conduct part
verbal part
81
The ______ part may compliment, or complete the ______ part .
verbal
conduct
82
The conduct and the verbal utterance must be made by the same person. True or False.
True
83
Examples of Verbal Acts (Legally Operative Words) and Verbal Parts of an Act:
1. ?
2.
3.
4.
1. Statements with legal significance
84
Examples of Verbal Acts (Legally Operative Words) and Verbal Parts of an Act:
1.
2. ?
3.
4.
2. Statements made during the course of a criminal act
85
Examples of Verbal Acts (Legally Operative Words) and Verbal Parts of an Act:
1.
2.
3. ?
4.
3. legal instruments
86
Examples of Verbal Acts (Legally Operative Words) and Verbal Parts of an Act:
1.
2.
3.
4. ?
4. ambiguous acts
87
David says to Peter, "I will mow your lawn for $65." Peter says, "Deal!" At the trial for breach of contract, Peter offers David's statement. Would this statement be hearsay?
No because David's statement was a verbal act; it was an offer.
There is legal significance attached to the speaking of the words, so David's statement does NOT constitute hearsay.
88
Donny walks into a bank and says, "I have a gun. Give me all of the money in the till." ________ _______ attaches to the words being spoken. Whether or not he actually had a gun (the ________ of the ____ _______) does not matter. Rather, Donny's spoken words constitute a ________ ________ and are not _________.
legal significance
the truth of the matter asserted
criminal act
hearsay
89
_______ that have been written on a bank account have been held to "fall squarely in this category of legally-operative verbal acts that are not barred by the hearsay rule." When offering ______ into evidence, they will not be considered hearsay.
checks
checks
90
Words which accompany _________ ______ might be verbal acts. For example, assume that Drew is on trial for trespass because he spent the night, unannounced, at Paula's house. Drew testifies that once, when visiting Paula, she said, "Whenever you are in town, feel free to stay at my place." Drew is offering the statement of Paula as a defense to the trespass case. Under these circumstances, Paula's statement would be an example of a verbal act and would NOT be hearsay.
ambiguous acts
91
Ambiguous Acts:
Other examples of verbal acts may include statements regarding:
1. ?
2.
3.
4.
5.
1. the making of a gift
92
Ambiguous Acts:
Other examples of verbal acts may include statements regarding:
1.
2. ?
3.
4.
5.
2. the offering of a bribe
93
Ambiguous Acts:
Other examples of verbal acts may include statements regarding:
1.
2.
3. ?
4.
5.
3. fraud
94
Ambiguous Acts:
Other examples of verbal acts may include statements regarding:
1.
2.
3.
4. ?
5.
4. perjury
95
Ambiguous Acts:
Other examples of verbal acts may include statements regarding:
1.
2.
3.
4.
5. ?
5. defamation
96
On occasion, out-of-court statements may be offered to ________ the testimony of a live witness.
impeach
97
The critical inquiry here is: What am I trying to prove here? Or, to put it another way, for what purpose is the evidence offered? If could be that you believe the witness is _______, has a poor _______, has terrible ______ or _______, or a myriad of other reasons that the witness's testimony is not accurate. So, if you are trying to demonstrate that the witness's testimony is not accurate, then you are offering an out of court statement to prove that -- inaccuracy (__________), not for the truth of the matter asserted.
untruthful
memory
vision or hearing
impeachment
98
Suppose that witness testifies that the man running down the back alley was wearing a blue sweatshirt. And suppose that she previously told a friend that the man was wearing a green sweatshirt. You offer evidence that the statement that witness told her friend. It is an out of court statement, so hearsay might be implicated. But why are you offering the statement? if you are offering it to prove the sweatshirt was green, then WOULD IT BE CONSIDERED HEARSAY?
It would be considered hearsay because you are offering it for the truth of the matter asserted.
99
Suppose that witness testifies that the man running down the back alley was wearing a blue sweatshirt. And suppose that she previously told a friend that the man was wearing a green sweatshirt. You offer evidence that the statement that witness told her friend. It is an out of court statement, so hearsay might be implicated. But why are you offering the statement? if you are offering it to prove the sweatshirt was green, then it would be considered hearsay because you are offering it for the truth of the matter asserted. On the other hand, if you are offering it to show that her testimony about the color of the sweatshirt is ________ then it is NOT _______ because you are offering it to _____ the witness's testimony with her prior inconsistent statement.
inconsistent
Hearsay
impeach
100
Statements which are used to show a person's ______ of _______ are not hearsay because they are not offered for the truth of the matter asserted.
state of mind
101
Let's say your neighbor, David Smith, goes around telling everyone that he is the famous movie star, Jean Claude Van Damme. Of course, he isn't, I know that, you know that, but unfortunately, he doesn't know that.
Your neighbor's kids are trying to get him committed. They have to prove he's a bit nuts. As evidence that David Smith is leaning towards the coo-coo side of things, the kids offer the statement that he told you, "I'm Jean Claude Van Damme. You should see me in my most recent movie." So, why is the statement offered?
It would likely not be offered for the truth of the matter asserted, because if it were it would be offered to prove that your neighbor is, in fact, Jean Claude Van Damme. However, it is more likely that being offered to prove his state of mind at the time he made the statement.
Therefore, the statement would not be hearsay.
102
