Question about hearsay

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UCFundergrad
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Question about hearsay

Postby UCFundergrad » Tue Dec 04, 2012 9:35 pm

I am for some reason having an incredibly hard time wrapping my mind around hearsay. Can anyone explain why this isn't hearsay..

As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."

So there are two statements in there but it seems to me at least that if we are trying to prove it was about midnight when K entered, then we need the statement that it was "just past midnight when L told me she saw K enter" to be true. So it seems that we are offering it for its truth.

I don't know...

Edit: sorry, it ISN'T hearsay, but I still don't know why
Last edited by UCFundergrad on Tue Dec 04, 2012 9:52 pm, edited 1 time in total.

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DocHawkeye
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Re: Question about hearsay

Postby DocHawkeye » Tue Dec 04, 2012 9:48 pm

Under the federal rules, Hearsay has two elements. It must be (1) a statement made out of court (2) offered for its truth. M's testimony refers to an out of court statement and that statement is being offered for the truth of her statetment. Imagine the testimony unfolding this way:

Q: Did M tell you anything on the night in question?
A: (L) Yes.
Q: What did M tell you?
A: She said that she saw K come in about midnight.

It's clear that the original statement was made out of court and it is being offered for its truth. Thus it is hearsay.

Does that help?

Geist13
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Re: Question about hearsay

Postby Geist13 » Tue Dec 04, 2012 9:48 pm

Break hearsay down analytically:

1. What is asserted?

2. What is the fact to be proven?

3. Is what is asserted offered for the purpose of proving the fact?

In this case the 10 minutes past isn't hearsay. That's just part of the testimony. the hearsay part is what was asserted out of court, namely "I saw K come in" where the declarant is L. Even though "I saw K come in" isn't 1:1 ratio with what is to be proven (namely that K was in the bulding around midnight") it is offered as part of proving that fact. You still need the additional testimony that it was around midnight at that time in order to actually prove it. But the fact that there is not a 1:1 correlation does not mean it isn't offered to prove the matter. The 10 minutes part is not hearsay. Don't think it is. It wasn't a statement out of the courtroom.

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Re: Question about hearsay

Postby Geist13 » Tue Dec 04, 2012 9:57 pm

UCFundergrad wrote:
Edit: sorry, it ISN'T hearsay, but I still don't know why


Yes it is. At least the part: "K told me 'L went into the building.'" that is most certainly hearsay.

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ph14
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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 9:59 pm

UCFundergrad wrote:I am for some reason having an incredibly hard time wrapping my mind around hearsay. Can anyone explain why this is hearsay..

As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."

So there are two statements in there but it seems to me at least that if we are trying to prove it was about midnight when K entered, then we need the statement that it was "just past midnight when L told me she saw K enter" to be true. So it seems that we are offering it for its truth.

I don't know...


[Edited for error.]
Last edited by ph14 on Tue Dec 04, 2012 10:42 pm, edited 1 time in total.

UCFundergrad
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Re: Question about hearsay

Postby UCFundergrad » Tue Dec 04, 2012 10:01 pm

Okay thanks guys.

You all are positive it is hearsay? I had in my notes it isn't but I was typing so fast I might have messed up.
Last edited by UCFundergrad on Tue Dec 04, 2012 10:06 pm, edited 1 time in total.

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ph14
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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:03 pm

UCFundergrad wrote:Okay thanks guys.

You all are positive it is hearsay? I had in my notes it isn't but I was typing so fast I made have messed up.


[Edited for error.]
Last edited by ph14 on Tue Dec 04, 2012 10:42 pm, edited 1 time in total.

UCFundergrad
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Re: Question about hearsay

Postby UCFundergrad » Tue Dec 04, 2012 10:10 pm

Okay I have one more if someone could walk me through it...I once again have it labeled non-hearsay but it seems like hearsay to my dumb self.

As proof that officer V acted in good faith in arresting W, offered by V in defending against the claim brought by W for violation of his rights, evidence that the prosecuting attorney told V "you have probable cause to arrest W"

Just walking through it, this seems like an oral assertion by the prosecuting attorney and it is being offered for its truth (it seems like).

I had hearsay nailed down earlier and it's like when you can't spell the word "the" without looking it up on Google because it just doesn't seem right.

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ph14
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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:15 pm

UCFundergrad wrote:Okay I have one more if someone could walk me through it...I once again have it labeled non-hearsay but it seems like hearsay to my dumb self.

As proof that officer V acted in good faith in arresting W, offered by V in defending against the claim brought by W for violation of his rights, evidence that the prosecuting attorney told V "you have probable cause to arrest W"

Just walking through it, this seems like an oral assertion by the prosecuting attorney and it is being offered for its truth (it seems like).

I had hearsay nailed down earlier and it's like when you can't spell the word "the" without looking it up on Google because it just doesn't seem right.


The statement here is not being offered here for the truth of the matter asserted (that he actually has probable cause), but rather for the effect on the listener (that the police officer acted in good faith, because he was told he had probable cause). Does that make sense? I'm happy to elaborate.

As a way to check yourself, ask, "is it still probative if it is not true?" For example, if the prosecutor had lied and there was actually no probable cause, the evidence would still be probative, because it has a tendency to support the defense that the officer acted in good faith. Compare this to the midnight example, above. There, if the statement was a lie, then it does not have probative value towards proving the truth of the matter asserted (that it was midnight).

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kalvano
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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 10:24 pm

ph14 wrote:
UCFundergrad wrote:Okay thanks guys.

You all are positive it is hearsay? I had in my notes it isn't but I was typing so fast I made have messed up.


Yeah, it definitely seems to be hearsay, unless it falls under one of the hearsay exceptions.



Not to be a nitpicky dick, but this was a big point on our exam. If it falls within a hearsay exception, it's still hearsay, it's just allowed in. For things under 801(d), that is specifically not hearsay.

But on my exam, if you identified something as not hearsay that was covered under 803 or 804, that is hearsay and you got the question wrong.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:26 pm

kalvano wrote:
ph14 wrote:
UCFundergrad wrote:Okay thanks guys.

You all are positive it is hearsay? I had in my notes it isn't but I was typing so fast I made have messed up.


Yeah, it definitely seems to be hearsay, unless it falls under one of the hearsay exceptions.



Not to be a nitpicky dick, but this was a big point on our exam. If it falls within a hearsay exception, it's still hearsay, it's just allowed in. For things under 801(d), that is specifically not hearsay.

But on my exam, if you identified something as not hearsay that was covered under 803 or 804, that is hearsay and you got the question wrong.


Point taken. My professor actually said to completely disregard this distinction, so I haven't paid it much thought while posting. I still think it's easier to refer to something as "hearsay but admissible due to an exception" versus "not hearsay," at least for clarity while posting on TLS.

UCFundergrad
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Re: Question about hearsay

Postby UCFundergrad » Tue Dec 04, 2012 10:30 pm

Okay I see the distinction. I'm have a late night panic attack because I had this all straight in my head and I'm starting to confuse myself with the exam being tomorrow. Thanks! I might end up posting another or two.

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ph14
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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:30 pm

UCFundergrad wrote:Okay I see the distinction. I'm have a late night panic attack because I had this all straight in my head and I'm starting to confuse myself with the exam being tomorrow. Thanks! I might end up posting another or two.


Sure, good luck.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 10:33 pm

UCFundergrad wrote:As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Certainly not hearsay. Your notes are right.

L's testimony:
Viewing K isn't hearsay. Neither is testifying to her own statement M that she saw K b/c it's not offered for truth. Instead, it's offered to timestamp the statement.

M's testimony:
Viewing a clock isn't hearsay. Neither is testifying to L's statement b/c it's not offered for truth. Again, it's offered to timestamp.

Together, the testimony shows that a L made a statement to M 10 minutes after viewing K. (The truth of that statement doesn't matter at all b/c we already have L's testimony that she saw K.) No hearsay problems at all.

Happy to elaborate further.
Last edited by hopin10 on Tue Dec 04, 2012 10:36 pm, edited 1 time in total.

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ph14
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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:35 pm

hopin10 wrote:
UCFundergrad wrote:As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Certainly not hearsay. Your notes are right.

L's testimony:
Viewing K isn't hearsay. Neither is telling M that she saw K b/c it's not offered for truth. Instead, it's offered to timestamp the statement.

M's testimony:
Viewing a clock isn't hearsay. Neither is testifying to L's statement b/c it's not offered for truth. Again, it's offered to timestamp.

Together, the testimony shows that a L made a statement to M 10 minutes after viewing K. (The truth of that statement doesn't matter at all b/c we already have L's testimony that she saw K.) No hearsay problems at all.

Happy to elaborate further.


Oh wait I see your point. I think you're right.
Last edited by ph14 on Tue Dec 04, 2012 10:37 pm, edited 1 time in total.

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kalvano
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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 10:35 pm

This may be helpful: http://sdrv.ms/RAlt1e


I used the shit out of that on my exam.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 10:37 pm

ph14 wrote:
hopin10 wrote:
UCFundergrad wrote:As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Certainly not hearsay. Your notes are right.

L's testimony:
Viewing K isn't hearsay. Neither is telling M that she saw K b/c it's not offered for truth. Instead, it's offered to timestamp the statement.

M's testimony:
Viewing a clock isn't hearsay. Neither is testifying to L's statement b/c it's not offered for truth. Again, it's offered to timestamp.

Together, the testimony shows that a L made a statement to M 10 minutes after viewing K. (The truth of that statement doesn't matter at all b/c we already have L's testimony that she saw K.) No hearsay problems at all.

Happy to elaborate further.


The "truth of the matter" is the "timestamp."


No, the truth asserted is that L saw K. Testifying to the time that a statement was made is not hearsay.
Last edited by hopin10 on Tue Dec 04, 2012 10:39 pm, edited 2 times in total.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:38 pm

hopin10 wrote:
ph14 wrote:
hopin10 wrote:
UCFundergrad wrote:As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Certainly not hearsay. Your notes are right.

L's testimony:
Viewing K isn't hearsay. Neither is telling M that she saw K b/c it's not offered for truth. Instead, it's offered to timestamp the statement.

M's testimony:
Viewing a clock isn't hearsay. Neither is testifying to L's statement b/c it's not offered for truth. Again, it's offered to timestamp.

Together, the testimony shows that a L made a statement to M 10 minutes after viewing K. (The truth of that statement doesn't matter at all b/c we already have L's testimony that she saw K.) No hearsay problems at all.

Happy to elaborate further.


The "truth of the matter" is the "timestamp."


No, the truth asserted is that L saw K. Testifying to the time that a statement was made is not hearsay.


You're right. I misread the hypo. If the testimony was "M told me she saw L enter just after midnight" then that would be hearsay. Whoops -- apologies OP. I hope I didn't confuse you more than you already were.

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Re: Question about hearsay

Postby DIH49 » Tue Dec 04, 2012 10:41 pm

UCFundergrad wrote:I am for some reason having an incredibly hard time wrapping my mind around hearsay. Can anyone explain why this isn't hearsay..

As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."

So there are two statements in there but it seems to me at least that if we are trying to prove it was about midnight when K entered, then we need the statement that it was "just past midnight when L told me she saw K enter" to be true. So it seems that we are offering it for its truth.

I don't know...

Edit: sorry, it ISN'T hearsay, but I still don't know why



I'm currently taking evidence and haven't yet taken the exam, so take this analysis for what it's worth. As I understand it, there are two statements here. One is L's statement in court that she saw K come in and that she told M about it. Since it is in court, it isn't hearsay. The second is M's testimony that it was just past midnight when L spoke to M. This is not hearsay because it is not being offered to prove the truth of what it asserts under FRE 801(c)(2). The assertion of the out of court statement is "I saw K enter" as spoken by L. However, as per the hypo the assertion is not being offered to prove "L saw K enter" but rather that the statement occurred "about midnight." M's testimony establishes timing, which the statement does not assert, not the fact of entrance, and therefore is not hearsay.

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Re: Question about hearsay

Postby UCFundergrad » Tue Dec 04, 2012 10:44 pm

hopin10 wrote:
UCFundergrad wrote:As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Certainly not hearsay. Your notes are right.

L's testimony:
Viewing K isn't hearsay. Neither is testifying to her own statement M that she saw K b/c it's not offered for truth. Instead, it's offered to timestamp the statement.

M's testimony:
Viewing a clock isn't hearsay. Neither is testifying to L's statement b/c it's not offered for truth. Again, it's offered to timestamp.

Together, the testimony shows that a L made a statement to M 10 minutes after viewing K. (The truth of that statement doesn't matter at all b/c we already have L's testimony that she saw K.) No hearsay problems at all.

Happy to elaborate further.


So how do you know what the truth of the matter is then? I just don't get how it is being offered as proof that the time was about midnight so it seems like they are offering this to prove what the time was. Sorry, I know I sound retarded right now. I truly have a mental block on this.

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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 10:47 pm

The hypo specifically says the statements are being offered to prove the time.

As proof that the time was about midnight when K entered the building



Testimony by L that she saw K come in


Not hearsay.

And mentioned it to M ten minutes later


Hearsay. Out of court statement being offered for the truth of the matter asserted.

Coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Hearsay. Out of court statement being offered for the truth of the matter asserted.
Last edited by kalvano on Tue Dec 04, 2012 10:52 pm, edited 1 time in total.

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ph14
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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:49 pm

UCFundergrad wrote:
hopin10 wrote:
UCFundergrad wrote:As proof that the time was about midnight when K entered the building, testimony by L that she saw K come in and mentioned it to M ten minutes later, coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Certainly not hearsay. Your notes are right.

L's testimony:
Viewing K isn't hearsay. Neither is testifying to her own statement M that she saw K b/c it's not offered for truth. Instead, it's offered to timestamp the statement.

M's testimony:
Viewing a clock isn't hearsay. Neither is testifying to L's statement b/c it's not offered for truth. Again, it's offered to timestamp.

Together, the testimony shows that a L made a statement to M 10 minutes after viewing K. (The truth of that statement doesn't matter at all b/c we already have L's testimony that she saw K.) No hearsay problems at all.

Happy to elaborate further.


So how do you know what the truth of the matter is then? I just don't get how it is being offered as proof that the time was about midnight so it seems like they are offering this to prove what the time was. Sorry, I know I sound retarded right now. I truly have a mental block on this.


The "truth of the matter" asserted is that the statement is true (i.e., accurate, not a lie, sincere, etc.). You don't even have to figure out the truth of the matter for the part about midnight, because that is just plain courtroom testimony. You only need to determine the truth of the matter for the out of court statement.

So, for example, if the hypo was as I misread it, and the scenario was: Witness testifies that "Declarant said they saw Defendant come in after midnight." Then the "truth of the matter" is the truth of the statement, i.e., that Declarant saw defendant come in after midnight. But if the Witness is just testifying that "I saw the Defendant come in after midnight," there is no out of court statement at issue and thus no hearsay probably and thus you don't need to figure out anything with regard to the "truth of the matter."

Or to take another example, a statement by the prosecutor that the police "had probable cause" if offered to actually prove that there was probable cause is offered for the "truth of the matter." But if that same statement is offered just to show the effect on the listener (that he had good faith because he was told he had probable cause), then that same statement is not being offered for the "truth of the matter."
Last edited by ph14 on Tue Dec 04, 2012 10:52 pm, edited 1 time in total.

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Re: Question about hearsay

Postby Gorki » Tue Dec 04, 2012 10:51 pm

To add on this, maybe you can argue some 104(b) aspect. You could maybe argue admitting L's testimony on grounds that it supports the aspect of Ls story that L did in fact tell M. Makes the evidence (L's original statement) more credible to the fact-finder.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 10:52 pm

Gorki wrote:To add on this, maybe you can argue some 104(b) aspect. You could maybe argue admitting L's testimony on grounds that it supports the aspect of Ls story that L did in fact tell M. Makes the evidence (L's original statement) more credible to the fact-finder.


Creative. I like it.

I miss evidence.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:54 pm

kalvano wrote:
Coupled with M's testimony that it was "just past midnight when L told me that she saw K enter."


Hearsay. Out of court statement being offered for the truth of the matter asserted.


I think here, M is testifying.




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