Hearsay Question Forum

[A'nold]

Hypo:

A police officer discovers a bottle of vicodin in someone's dresser drawer but gives the pill bottle back to the person because he does not think that it is important. Later, it becomes and issue at trial and the police officer is called to testify to the date listed on the prescription bottle. Obviously, the state cannot now acquire that pill bottle from the defendant b/c he would have disposed of it by then.

The defense objects to the officer's recollection of the date on the pill bottle, claiming it is hearsay.

What result? Is there any way the state will be able to use the officer's testimony?

[Anonymous Loser]

How has the date become an issue? Is the officer's recollection of the date being used to impeach?

[NotMyRealName09]

The officer is testifying from personal knowledge. There is no hearsay. He is not testifying as to the truth of the matter asserted by the writing (that the bottle was filled on a certain date, or the pills expired on a certain date - you didn't specify what kind of date, The date could be wrong, or altered). He is instead testifying as to what he saw.

OVERRULED. - Sorry, I'm actually not a law student anymore, but I couldn't help it. Am I right?

[zanda]

The officer is testifying from personal knowledge. There is no hearsay. He is not testifying as to the truth of the matter asserted by the writing (that the bottle was filled on a certain date, or the pills expired on a certain date - you didn't specify what kind of date, The date could be wrong, or altered). He is instead testifying as to what he saw.

OVERRULED. - Sorry, I'm actually not a law student anymore, but I couldn't help it. Am I right?

I disagree. His testimony might be as to what he saw, but it is being used for the truth of the matter asserted. What else is it being used for? (I can conceive of other possible uses, but we obviously don't have any facts here.)

I don't see a difference between this and when the officer testifies as to what he heard the Vicodin owner say was the date filed (other than reliability). There, the officer is testifying as to what he heard, but it is being used for the truth of the matter asserted.

[Tanicius]

The officer is testifying from personal knowledge. There is no hearsay. He is not testifying as to the truth of the matter asserted by the writing (that the bottle was filled on a certain date, or the pills expired on a certain date - you didn't specify what kind of date, The date could be wrong, or altered). He is instead testifying as to what he saw.

OVERRULED. - Sorry, I'm actually not a law student anymore, but I couldn't help it. Am I right?

I disagree. His testimony might be as to what he saw, but it is being used for the truth of the matter asserted.

Um... Okay, no. I mean, yes, what you are saying is correct, but what you said is irrelevant to the issue. Most things offered at trial are offered for the truth of the matter asserted because they are factual assertions. When you testify to your recollection that a car ran a red light, you are testifying to the truth of the matter asserted. That doesn't make what you recollected a hearsay statement. Hearsay is a statement made outside of court. It is a statement that violates the 6th amendment's confrontation clause by virtue of it being impossible to cross examine the person who originally made the statement. That simply does not apply in this case in any way whatsoever.

I don't see a difference between this and when the officer testifies as to what he heard the Vicodin owner say was the date filed (other than reliability).

Oh, you're saying the writing on the pill case is hearsay. In that case yes, it is technically hearsay. The out of court statement is "These pills were manufactured on such and such a date." Obviously the entity that wrote that statement is not in court to cross examine. Fortunately for A'nold's case 701 and 703 allow witnesses to say within a reasonable degree of certainty that they deduced the pills were so and so years old because the pill box said so, even if the pill box was hearsay. This is because rational people reasonably rely upon such statements to form conclusions about the age of pills.

[redsox4lyfe]

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[taxguy]

Actually, I found this interesting. So, I th ought I would respond. Generally hearsay is when one person overhears another person concerning an event or thing in which the first person has no direct experience. Here the officer is relating what he actually saw. This is NOT hearsay in my mind. If the officer heard the defendant say' It had an expiration date of X" then it would be hearsay since there is no direct observation by the officer. However , the officer's testimony can be impeached based on his recollection or lack thereoff.

[Tanicius]

Like others have said, wouldn't it entirely depend on why it was being used? I mean if it is being offered to prove that the date on the bottle was X date, it is not hearsay. If it is being offered to prove that the bottle was actually filled on that date, then I suppose you'd have to find an exception (would 803.6 work? doesn't the custodian of the document have to testify to the business record?)

Yes. And no matter how easily you can get that custodian to come to court or sign a notarized document, it's worthless without having the sticker that was on the actual bottle.

Wouldn't they just offer proof that the date on the bottle was X date and let the jury infer that that is in fact correct?

I would say the opposite is more appropriate. Offer a 702 conclusion by the police officer that the pills were in fact Date X because, as he often does, he found some evidence in the household that indicated the age of the pills. 703 allows experts to rely on inadmissible evidence such as hearsay, and it's not exactly a conclusion that takes years of education or training to make anyway. Normal people rely on the same kinds of information to make conclusions about the age/safety of medication.

[Tanicius]

Actually, I found this interesting. So, I th ought I would respond. Generally hearsay is when one person overhears another person concerning an event or thing in which the first person has no direct experience. Here the officer is relating what he actually saw. This is NOT hearsay in my mind. If the officer heard the defendant say' It had an expiration date of X" then it would be hearsay since there is no direct observation by the officer. However , the officer's testimony can be impeached based on his recollection or lack thereoff.

That is not an accurate understanding of hearsay. Generally speaking, statements made out of court are hearsay. Statements are anything that claims something to be factually true. Writing is often made up of statements. It does not matter if you "see" writing - you can't just recite to a court what the writing told you. The same reasoning behind the confrontation clause of the 6th Amendment is violated whether statements are made in writing or audible speech.

[redsox4lyfe]

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[Tanicius]

Wouldn't they just offer proof that the date on the bottle was X date and let the jury infer that that is in fact correct?

I would say the opposite is more appropriate. Offer a 702 conclusion by the police officer that the pills were in fact Date X because, as he often does, he found some evidence in the household that indicated the age of the pills. 703 allows experts to rely on inadmissible evidence such as hearsay, and it's not exactly a conclusion that takes years of education or training to make anyway. Normal people rely on the same kinds of information to make conclusions about the age/safety of medication.

If it is not based on any sort of specialized knowledge, expertise, etc., wouldn't it not be an expert conclusion? It would just be a lay observation under 701. If "normal people" can draw the conclusion that the date is correct, then the jury will be able to do so from the officer's testimony that he saw the date as X.

This is true. 701 is unfortunately more ambiguous when it comes to the reliance on outside information. Relying upon hearsay is probably not admissible for a 701 conclusion.

[redsox4lyfe]

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[Tanicius]

Hm. I'm going to change my mind on this. I don't think this is coming in, A'nold. Typically the way that commercial products such as receipts come into the record is through a physical copy of the statement (803.6). Without the sticker that was on the bottle as evidence, you're going to be fighting an uphill bottle.

It really depends on the judge. The judge could say "Well duh this is coming in, it's just a bottle of pills - hardly something that would be unreliable." Or you could get a judge who sticks to the rules of evidence and finds the cop's unsubstantiated claim that the pills happened to say something good for your case as incredibly dubious.


As a last ditch effort to be helpful, what exactly are you using the age of pills for? I mean, why is this such a contentious issue at trial? It seems very trivial. Keep in mind that if hearsay statements influenced a cop to do something later, you can have the statements come in not as something offered for the truth of the matter but as a statement that gives context to a subsequent action by the witness.

Example:

"Why did you go back inside the house?"

"Because the guy told me that I was needed again."

[Tanicius]

If it is not based on any sort of specialized knowledge, expertise, etc., wouldn't it not be an expert conclusion? It would just be a lay observation under 701. If "normal people" can draw the conclusion that the date is correct, then the jury will be able to do so from the officer's testimony that he saw the date as X.

This is true. 701 is unfortunately more ambiguous when it comes to the reliance on outside information. Relying upon hearsay is probably not admissible for a 701 conclusion.

Right--don't offer a conclusion. Just offer the testimony that he saw the date as X, which is not reliant on any hearsay, but is rather a physical observation. Let the jury draw the obvious conclusion.

If the observation happens to be an observation rooted in hearsay then it's still inadmissible. This is not the case for expert conclusions, but at least at the federal level it is the case for lay witness conclusions.

[Anonymous Loser]

Right--don't offer a conclusion. Just offer the testimony that he saw the date as X, which is not reliant on any hearsay, but is rather a physical observation. Let the jury draw the obvious conclusion.

I'd love to see this play out:

Lawyer A: "Then what did Defendant say?"

Lawyer B: "Objection, hearsay."

Lawyer A: "Oh, no your honor, it's not hearsay: I'm just asking the witness to describe his physical observation of the sounds emitted by Defendant."

Judge: "Well, in that case, lets just let the jury draw the obvious conclusion. Overruled."

What a ridiculous reading of the evidence rules.

[Tanicius]

Right--don't offer a conclusion. Just offer the testimony that he saw the date as X, which is not reliant on any hearsay, but is rather a physical observation. Let the jury draw the obvious conclusion.

I'd love to see this play out:

Lawyer A: "Then what did Defendant say?"

Lawyer B: "Objection, hearsay."

Lawyer A: "Oh, no your honor, it's not hearsay: I'm just asking the witness to describe his physical observation of the sounds emitted by Defendant."

Judge: "Well, in that case, lets just let the jury draw the obvious conclusion. Overruled."

What a ridiculous reading of the evidence rules.

801.d.2 applies in that case, making it not hearsay in the first place, but yes, in so many words your logic is valid.

[redsox4lyfe]

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[Tanicius]

What a ridiculous reading of the evidence rules.

I don't think your hypothetical is right on point, but then again, its been a while for me, so I don't make any claims about being right. Just throwing out an idea based on what I could remember.

Basically, if he replaced "defendant" with "non-party representative declarant," he'd be completely right.


Sorry for kind of derailing your thread A'nold. I'll take it to the PM's.

[Anonymous Loser]

What a ridiculous reading of the evidence rules.

I don't think your hypothetical is right on point, but then again, its been a while for me, so I don't make any claims about being right. Just throwing out an idea based on what I could remember.

Basically, if he replaced "defendant" with "non-party representative declarant," he'd be completely right.


Sorry for kind of derailing your thread A'nold. I'll take it to the PM's.

Oh, good point, I hadn't meant to make it an admission.

[zanda]

What a ridiculous reading of the evidence rules.

I don't think your hypothetical is right on point, but then again, its been a while for me, so I don't make any claims about being right. Just throwing out an idea based on what I could remember.

The issue (or one issue) is that the evidence would have to be relevant. If it's not introduced for the inference that the prescription was filled that day, but only that the officer observed the date on the bottle, it's difficult to see how that would be relevant.

[Tanicius]

What a ridiculous reading of the evidence rules.

I don't think your hypothetical is right on point, but then again, its been a while for me, so I don't make any claims about being right. Just throwing out an idea based on what I could remember.

The issue (or one issue) is that the evidence would have to be relevant. If it's not introduced for the inference that the prescription was filled that day, but only that the officer observed the date on the bottle, it's difficult to see how that would be relevant.

The whole point of this issue is confusing to me. I'm not sure how age of pills affects an element of a criminal trial. Must be a weird drug charge.

[zanda]

What a ridiculous reading of the evidence rules.

I don't think your hypothetical is right on point, but then again, its been a while for me, so I don't make any claims about being right. Just throwing out an idea based on what I could remember.

The issue (or one issue) is that the evidence would have to be relevant. If it's not introduced for the inference that the prescription was filled that day, but only that the officer observed the date on the bottle, it's difficult to see how that would be relevant.

The whole point of this issue is confusing to me. I'm not sure how age of pills affects an element of a criminal trial. Must be a weird drug charge.

lol I've been wondering that too.

[redsox4lyfe]

The issue (or one issue) is that the evidence would have to be relevant. If it's not introduced for the inference that the prescription was filled that day, but only that the officer observed the date on the bottle, it's difficult to see how that would be relevant.

Yeah sorry that's what I was (poorly) trying to get at. If the issue in the trial was the date on the bottle, that should be admissible as it is not hearsay. You could not offer the date on the bottle to prove the date it was actually filled; that would be hearsay and would require some exception.

So I agree with you 100%, if you argued it was being offered to prove just the date on the bottle, the date on the bottle would have to be relevant for some reason - and for some reason other than it is a good indication of the actual date filled.

[A'nold]

The officer is testifying from personal knowledge. There is no hearsay. He is not testifying as to the truth of the matter asserted by the writing (that the bottle was filled on a certain date, or the pills expired on a certain date - you didn't specify what kind of date, The date could be wrong, or altered). He is instead testifying as to what he saw.

OVERRULED. - Sorry, I'm actually not a law student anymore, but I couldn't help it. Am I right?

Wow, this thread really blew up!

[A'nold]

Hm. I'm going to change my mind on this. I don't think this is coming in, A'nold. Typically the way that commercial products such as receipts come into the record is through a physical copy of the statement (803.6). Without the sticker that was on the bottle as evidence, you're going to be fighting an uphill bottle.

It really depends on the judge. The judge could say "Well duh this is coming in, it's just a bottle of pills - hardly something that would be unreliable." Or you could get a judge who sticks to the rules of evidence and finds the cop's unsubstantiated claim that the pills happened to say something good for your case as incredibly dubious.


As a last ditch effort to be helpful, what exactly are you using the age of pills for? I mean, why is this such a contentious issue at trial? It seems very trivial. Keep in mind that if hearsay statements influenced a cop to do something later, you can have the statements come in not as something offered for the truth of the matter but as a statement that gives context to a subsequent action by the witness.

Example:

"Why did you go back inside the house?"

"Because the guy told me that I was needed again."

See, this is my understanding but it seems confusing as hell. What about "best evidence"?