Short and Happy Guide Chapter 6: Hearsay 2

Question 1

Rule ______ defines declarant.

Answer 1

801(b)

Question 2

Rule 801(b) defines _______.

Answer 2

declarant

Question 3

Recall that FRE 801(c) requires that the declarant’s statement be made somewhere other than at the ______ ________ or ________.

Answer 3

current trial or hearing

Question 4

Rule 801(b) defines a declarant as:

Answer 4

the person who made the statement

Question 5

Rule 801(b) defines a ______ as the person who made the statement.

Answer 5

declarant

Question 6

Can animals be declarants?

Answer 6

no

Question 7

If a talking parrot makes a statement, that statement will not be hearsay because by definition a statement must come from a _________.

Answer 7

person

Question 8

Certain _______ generated printouts cannot be statements because they do not come from persons.

Answer 8

computer

Question 9

Email comes from computer, so are they not statements?

Answer 9

Yes, they are statements but the distinction is whether a person or automated system generates the ultimate statement.

Question 10

Email: they are statements, but the distinction is whether a person or automated system generates the ultimate statement. A person who inputs data that comes out of a computer, in some form or fashion, would ultimately generate a statement. !!

Answer 10

!!

Question 11

Emails, text messages, and any other sort of printout even computer-generated would be considered statements made by a ________ so long as a human generated it. On the other hand, a computer that takes readings, such as temperate or other types of data and generates a report, would not be hearsay because there was no person (declarant) who generated the report.

Answer 11

declarant

Question 12

Rule ______ defines a statement as a persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Answer 12

801(a)

Question 13

Rule 801(a) defines a _________ as a persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

Answer 13

statement

Question 14

Rule 801(a) defines a statement as a persons ____ ________, _______ _______ or ______ _______, if the person intended it as an assertion.

Answer 14

oral assertion
written assertion
nonverbal conduct

Question 15

The rule provides that assertions may be ______. The spoken word is the most obvious, but realize that recorded statements also qualify as “oral” assertions.

Answer 15

oral

Question 16

_______ ________ can come in virtually any form.

Answer 16

written assertions

Question 17

The rule does not distinguish between languages or methods of conveyance.

What does this refer to?

Answer 17

Written assertions

Question 18

A printout, handwritten document, a typed document, or even words on a tablet or computer screen can be _______ _________. Stone tablets would also qualify but would be quite heavy to carry into a courtroom.

Answer 18

written assertions

Question 19

Sign language would be considered _______ ________.

Answer 19

non-verbal conduct

Question 20

The critical question is whether or not the conduct is intended to convey a message (an assertion)!

Answer 20

!

Question 21

Back in 2014, the city of Flint, Michigan, changed its water source from the municipal system to the Flint River. Unfortunately, water from the river was apparently toxic from lead, which leached from old pipes. The Environmental Protection Agency claimed that the river water, if properly filtered, was safe to drink.

After the release of the EPA report, people were still weary of drinking the water, even filtered. To combat concerns, the Mayor of Flint invited the press to his home. With cameras rolling, he removed a clear glass from his kitchen cabinets, filled it with filtered water from his tap, and immediately consumed it.

There is clearly ________ conduct. What is the conduct?

Answer 21

The drinking of the water from the tap is the conduct.

Question 22

Back in 2014, the city of Flint, Michigan, changed its water source from the municipal system to the Flint River. Unfortunately, water from the river was apparently toxic from lead, which leached from old pipes. The Environmental Protection Agency claimed that the river water, if properly filtered, was safe to drink.

After the release of the EPA report, people were still weary of drinking the water, even filtered. To combat concerns, the Mayor of Flint invited the press to his home. With cameras rolling, he removed a clear glass from his kitchen cabinets, filled it with filtered water from his tap, and immediately consumed it.

The crucial question for the non-verbal conduct, and, for that matter, any conduct evaluated under this rule, is whether the declarant intended the conduct as an _______ or not. Do you think that the Mayor’s invitation to the press and his drinking the water was intended as an assertion?

Answer 22

Most definitely yes.

Any non-verbal conduct, if intended as an assertion, meets the requirement of Rule 801(a).

Question 23

Do not forget that in addition to non-verbal conduct, oral, and written statements must also be ________ as an ________ to qualify under the rule.

Answer 23

intended as an assertion

Question 24

“The light was red when the car ran through the intersection.”

Answer 24

Assertion
A person intending to communicate (assert) something to someone.

Question 25

“Billy hit me with the baseball.”

Answer 25

Assertion
A person intending to communicate (assert) something to someone.

Question 26

“I can’t stand the smell of popcorn.”

Answer 26

Assertion
A person intending to communicate (assert) something to someone.

Question 27

If your partner, significant other, or spouse writes “XOXOXOXOXO” on a card and gives it to you, is that an assertion?

Answer 27

sure, it means hugs and kisses

Question 28

If an emoji comes across your screen that resembles a happy face, is that an assertion?

Answer 28

It might be. It all depends upon the declarant’s intentions.

Question 29

However, suppose that you accidentally cut yourself, and in the process of cutting yourself, you let out a scream “AHHHHH.” Your scream is undoubtedly verbal conduct. However, it is very unlikely that in the act of screaming, you ________ to ______ something.

Answer 29

intended to assert

Question 30

However, suppose that you accidentally cut yourself, and in the process of cutting yourself, you let out a scream “AHHHHH.” Your scream is undoubtedly verbal conduct. However, it is very unlikely that in the act of screaming, you intended to assert something. You might be thinking, I was asserting that I am in pain. Of course, the verbal act reflected that you were in pain, but it is unlikely that you made the sound to convey something via oral communication; or, in the words of Rule 801(a), you did not _______ your scream as an _______. The sound was likely reactive or reflexive.

Answer 30

intend

assertion

Question 31

Now, consider nonverbal communication. The obvious example is a person communicating through the use of sign language. But sometimes, nonverbal communication can be less obvious. Has your mother ever given you the look that tells you she is mad? That is an example of _______ _______. She is communicating something, and you know quite well what is being communicated.

Answer 31

nonverbal conduct

Question 32

Under the rule, _______ can be found in three forms: orally, nonverbally, or written.

Answer 32

assertions

Question 33

_________ can generally be categorized as direct and indirect also known as implied assertions.

Answer 33

assertions

Question 34

Assertions can generally be categorized as ____ and ______ (also known as implied assertions.)

Answer 34

direct
indirect

Question 35

Although _______ ________ are usually self-evident, they can sometimes be challenging.

Answer 35

Direct assertions

Question 36

________ _______ can be the more difficult ones to figure out.

Answer 36

indirect assertions

Question 37

“I was afraid of Jason.”

Answer 37

Direct assertion that communicates the declarant’s state of mind

Question 38

“Shelly hit me.”

Answer 38

Direct assertion that communicates a serious physical action

Question 39

“The car just ran the red light.”

Answer 39

Direct assertion that communicates an observation

Question 40

“I’m scared of Allison.”

Answer 40

Direct assertion that communicates the declarant’s current state of mind.

Question 41

“My lower back has been hurting me.”

Answer 41

Direct assertion that communicates the declarant’s physical condition.

Question 42

Contrary to direct assertions, ________ (or implied) assertions require the fact-finder to infer a fact from the statement made.

Answer 42

indirect

Question 43

The utterance does not directly assert the proposition it is offered to prove. The fact-finder must determine the fact through an ________ which comes out of the statement.

Answer 43

inference

Question 44

The most famous statement constituting an _____ ________ comes from a criminal case. In that case, there was evidence that after a suspect Parran was arrested, he later told another person Reynolds I didn’t tell them about you. The them he was referring to were postal inspectors. The direct assertion is easy that Parran didn’t tell the postal inspectors anything about Reynolds. But that statement as a direct assertion is meaningless. What is the _______ ________? That Reynolds was also involved in the crime.

Answer 44

implied assertion
indirect assertion

The third circuit found that the statement contained an indirect assertion and did constitute hearsay.

Question 45

In another case, an individual made a phone call and told the other party that he (the caller) needed a 40. Evidence illustrated that the reference to a 40 was for a $40 piece of cocaine. The _____ _______ is that the caller wanted to purchase cocaine. The ______ ______ is that the place he called is one that accepts bets. This statement was found to be ______ and subject to the same analysis as direct assertions.

Answer 45

direct assertion

indirect assertion

hearsay

Question 46

Some questions may not be hearsay, while others may be hearsay. The critical determination I weather the person making the statement intended the question as an ________. The grammatical form of a verbal utterance does not govern whether it fits within the definition of hearsay. The term matter asserted includes both matters directly expressed and matters the declarant necessarily implicitly intended to assert.

Answer 46

assertion

Question 47

This means when you ask your son, “Did you eat that piece of chocolate cake?” you _______ to make an _________.

Answer 47

intended

assertion

Question 48

You have now deciphered the first portion of Rule 801(a)-(c). This part of the analysis must always be your starting point in any hearsay analysis:
1. ?
2.
3.
4.
If a statement meets all of the above conditions, then that statement is hearsay. Now you must analyze the statement in light of 801(d).

Answer 48

1. Determine what the statement is 801(a)

Question 49

You have now deciphered the first portion of Rule 801(a)-(c). This part of the analysis must always be your starting point in any hearsay analysis:
1.
2. ?
3.
4.
If a statement meets all of the above conditions, then that statement is hearsay. Now you must analyze the statement in light of 801(d).

Answer 49

2. Determine who the declarant is 801(b)

Question 50

You have now deciphered the first portion of Rule 801(a)-(c). This part of the analysis must always be your starting point in any hearsay analysis:
1.
2.
3. ?
4.
If a statement meets all of the above conditions, then that statement is hearsay. Now you must analyze the statement in light of 801(d).

Answer 50

3. Determine if the statement was made other than at the current trial or hearing 801(c)(1) and

Question 51

You have now deciphered the first portion of Rule 801(a)-(c). This part of the analysis must always be your starting point in any hearsay analysis:
1.
2.
3.
4. ?
If a statement meets all of the above conditions, then that statement is hearsay. Now you must analyze the statement in light of 801(d).

Answer 51

4. Determine whether the statement is offered into evidence to prove the truth of the matter asserted in the statement. 801(c)(2)

Question 52

On the issue of breach of contract, a written contract was executed by both parties. Hearsay?

Answer 52

This would not be hearsay because the contract is a legally operative fact.

Question 53

On the issue of whether the traffic light was red or green when the car traveled through the intersection, the witness testified that he was told by Wilma that the light was green. Hearsay?

Answer 53

This would be oral hearsay because the statement is being offered to prove the truth of the matter asserted in the statement (the color of the light).

Question 54

On the issue of whether the transfer of Disney stock from Adam to Brandy was a gift or a sale, Brandy offers a statement made at the time of the transfer: “I’m giving you this share of stock as an employee bonus for your performance.” Hearsay?

Answer 54

This would not be hearsay because the statement offered encompasses legally operative words of a gift and is not offered to prove the truth of the matter asserted.

Question 55

On the issue of whether the plastic baggie found on the Defendant contained methamphetamine, the prosecutor offers the report from the crime lab, which states that the baggie contained methamphetamine. Hearsay?

Answer 55

This would be written hearsay because the statement (the report) is being offered to prove the truth of the matter asserted in the statement (that the contents of the baggie was methamphetamine).

Question 56

Once you have determined that a particular statement is hearsay as defined by Rule 801(a)-(c), you must then determine whether or not it is considered “not hearsay” under Rule 801(d). Certain statements that meet the definition of hearsay will still be considered not hearsay because of the rules.

EXCEPTIONS !

Answer 56

!

Question 57

Once you determine that a statement is hearsay as determined by Rules 801(a)-(c), your next step is to analyze the statement under Rule 801(d). If and only if the statement meets one of the sections of 801(d), then that statement will be considered __________.

Answer 57

non-hearsay / EXCEPTION