Question about hearsay

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ph14
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Re: Question about hearsay

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


Can you explain this? Why is this only conditionally relevant?

hopin10
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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 10:56 pm

ph14 wrote:
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.


Agree. In addition, kalvano, try writing out what you think the truth value is of a particular out-of-court statement. I think it'll clear things up.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 10:57 pm

ph14 wrote:
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.


Can you explain this? Why is this only conditionally relevant?


Not conditional relevance--I didn't mean to sign on to 104(b) in particular.

It may just be relevant because it corroborates witness' story that she told another person she saw the defendant. This might be relevant if the witness' credibility in claiming she saw the defendant is in question.
Last edited by hopin10 on Tue Dec 04, 2012 10:58 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 10:58 pm

ph14 wrote:
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.



You're right, but M is testifying as to what L said out of court.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 10:59 pm

hopin10 wrote:
ph14 wrote:
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.


Agree. In addition, kalvano, try writing out what you think the truth value is of a particular out-of-court statement. I think it'll clear things up.


I think this would be clearer if you broke it into two parts.

Witness said: it was just past midnight when [event] happened.
    Not hearsay because no out of court statement. This is just plain courtroom testimony.
Witness said: "L told me that she say K enter"
    Presumably hearsay, because it is (1) an out of court statement; and (2) PRESUMABLY it is being offered for the truth. It doesn't say explicitly that it is actually offering this statement for the truth, but it does not be appear to be offered for any other reason (i.e., legally operative words, effect on listener, etc.), so they want this statement in to support the credibility of the narrative (again, presumably).
Last edited by ph14 on Tue Dec 04, 2012 11:00 pm, edited 1 time in total.

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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 11:00 pm

hopin10 wrote:
ph14 wrote:
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.


Agree. In addition, kalvano, try writing out what you think the truth value is of a particular out-of-court statement. I think it'll clear things up.



I understand that you can make any number of creative arguments to get the statements admitted. But the hypo specifically says they are being offered to prove the time, and that's what they are testifying to.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:00 pm

kalvano wrote:

I understand that you can make any number of creative arguments to get the statements admitted. But the hypo specifically says they are being offered to prove the time, and that's what they are testifying to.


But I don't think that the testimony about the time is an out of court statement.
Last edited by ph14 on Tue Dec 04, 2012 11:02 pm, edited 2 times in total.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 11:01 pm

kalvano wrote:I understand that you can make any number of creative arguments to get the statements admitted. But the hypo specifically says they are being offered to prove the time, and that's what they are testifying to.


Sigh. No.

I'm gonna sign off on this point--I think it's well-illustrated here. Feel free to PM with any more questions, OP.
Last edited by hopin10 on Tue Dec 04, 2012 11:02 pm, edited 1 time in total.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:01 pm

hopin10 wrote:
ph14 wrote:
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.


Can you explain this? Why is this only conditionally relevant?


Not conditional relevance--I didn't mean to sign on to 104(b) in particular.

It may just be relevant because it corroborates witness' story that she told another person she saw the defendant. This might be relevant if the witness' credibility in claiming she saw the defendant is in question.


Ah I see. Yeah I think that is a good point. It does seem relevant enough to be admitted because it corroborates the witness's story. That would be a 104(a) probably, right?

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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 11:02 pm

ph14 wrote:But I don't think that the testimony about the time is an out of court statement.



She can say it was just after midnight when L said something to her, but she can't testify as to what was said.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 11:03 pm

ph14 wrote:Ah I see. Yeah I think that is a good point. It does seem relevant enough to be admitted because it corroborates the witness's story. That would be a 104(a) probably, right?


That sounds right to me! I don't always think in terms of the particular rules, but after looking it up, seems correct.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:05 pm

hopin10 wrote:
kalvano wrote:I understand that you can make any number of creative arguments to get the statements admitted. But the hypo specifically says they are being offered to prove the time, and that's what they are testifying to.


Sigh. No.

I'm gonna sign off on this point--I think it's well-illustrated here. Feel free to PM with any more questions, OP.


I guess a relevant issue i'm unsure about is disaggregating a statement that contains both admissible courtroom testimony and nonadmissible hearsay. What is the relevant rule/case/rationale/result?

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:05 pm

kalvano wrote:
ph14 wrote:But I don't think that the testimony about the time is an out of court statement.



She can say it was just after midnight when L said something to her, but she can't testify as to what was said.


So you'd have to disaggregate the statements?

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Re: Question about hearsay

Postby UCFundergrad » Tue Dec 04, 2012 11:06 pm

Okay guys, thanks a ton for the help. Since you guys seem willing let me try another one here...

As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E "not to drive it out to San Francisco."

The answer says non-hearsay so I know that much.

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Re: Question about hearsay

Postby DIH49 » Tue Dec 04, 2012 11:07 pm

kalvano wrote:
ph14 wrote:
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.



You're right, but M is testifying as to what L said out of court.


M testifying as to what L said out of court establishes FRE 801(c)(1), but you still have to satisfy 801(c)(2) for a statement to be hearsay. Here, the statement was "K just came in" as asserted by L. 801(c)(2) says that for a statement to be hearsay it must be offered "to prove the truth of the matter asserted in the statement." M's testimony isn't being offered to prove "K came in," which is what the statement asserts, it's being used to prove the timing. Therefore it is not hearsay.

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Re: Question about hearsay

Postby hopin10 » Tue Dec 04, 2012 11:08 pm

ph14 wrote:I guess a relevant issue i'm unsure about is disaggregating a statement that contains both admissible courtroom testimony and nonadmissible hearsay. What is the relevant rule/case/rationale/result?


A statement comes in or not based on what's it being offered to show. Here, the witness' statements to a third party are not being offered for their truth--the truth value is already established by her testimony that she saw the defendant.

Instead, they're being offered to show that the statement was made. You could make a prejudicial / probative argument to try to keep out the statement itself and replace with "I made a statement" or "Witness made a statement," but a hearsay objection won't do the trick.
Last edited by hopin10 on Tue Dec 04, 2012 11:09 pm, edited 2 times in total.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:09 pm

UCFundergrad wrote:Okay guys, thanks a ton for the help. Since you guys seem willing let me try another one here...

As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E "not to drive it out to San Francisco."

The answer says non-hearsay so I know that much.


Could this statement fall under the exception of "legally operative words," because it might be triggering the legal duty to keep the car within the boundaries of San Francisco? I guess that would be the argument for non-hearsay. And the counter would be, well, it's not exactly like the traditional legally operative words such as "I accept," and is more friends talking to friends without creating a legal duty.

I'm not sure though. What are your thoughts?
Last edited by ph14 on Tue Dec 04, 2012 11:11 pm, edited 1 time in total.

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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 11:14 pm

DIH49 wrote:M testifying as to what L said out of court establishes FRE 801(c)(1), but you still have to satisfy 801(c)(2) for a statement to be hearsay. Here, the statement was "K just came in" as asserted by L. 801(c)(2) says that for a statement to be hearsay it must be offered "to prove the truth of the matter asserted in the statement." M's testimony isn't being offered to prove "K came in," which is what the statement asserts, it's being used to prove the timing. Therefore it is not hearsay.



Fuck me, I misread it too.

I guess I shouldn't be trying to study for 2 other classes and remember Evidence.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:25 pm

hopin10 wrote:
ph14 wrote:I guess a relevant issue i'm unsure about is disaggregating a statement that contains both admissible courtroom testimony and nonadmissible hearsay. What is the relevant rule/case/rationale/result?


A statement comes in or not based on what's it being offered to show. Here, the witness' statements to a third party are not being offered for their truth--the truth value is already established by her testimony that she saw the defendant.

Instead, they're being offered to show that the statement was made. You could make a prejudicial / probative argument to try to keep out the statement itself and replace with "I made a statement" or "Witness made a statement," but a hearsay objection won't do the trick.


DIH49 wrote:
M testifying as to what L said out of court establishes FRE 801(c)(1), but you still have to satisfy 801(c)(2) for a statement to be hearsay. Here, the statement was "K just came in" as asserted by L. 801(c)(2) says that for a statement to be hearsay it must be offered "to prove the truth of the matter asserted in the statement." M's testimony isn't being offered to prove "K came in," which is what the statement asserts, it's being used to prove the timing. Therefore it is not hearsay.


I want to push back on this. Please correct me if i'm wrong. I think you have to treat these two statements separately. I don't think you can backdoor hearsay in like this. For example, the government is trying to prove the the sky is blue. Witness testifies, "I saw the sky, it was blue, as I was in Defendant's office where he told me he killed Victim." Just because they here were trying to prove the sky was blue, doesn't mean that the other parts of the statement aren't also offered for the truth of the matter. Even if they say they were trying to prove one thing, that doesn't mean that the rest of the statement is not for the truth of the matter asserted. My intuition is that you can't run end-around the hearsay rules like that.

So in our example, we disaggregate the two statements. First one we will ignore since it is not a hearsay problem, and is rather plain courtroom testimony. Now all we have left is the out of court statement that, "K said that L came in" (or something to that effect). If offered for the truth of the matter it is inadmissible hearsay (assuming no exception applies). If it is not being offered for the truth, then it seems to be it would fail 403. It would seem highly prejudicial to get the hearsay statement in by saying it is not being offered for the truth of the matter. I guess we would have to look at what it is really offered for, not what the proponent of the evidence says. Here, it isn't really clear, and I guess you would just argue it both ways? My intuition is that you have to assume it is offered for the truth of the matter unless they say otherwise. So I'd think that this second part would be inadmissible hearsay, despite the proponent's statement that it is not offered for this purpose.

Anyways, can someone please clarify this for me.

Edit: Nevermind, at least in this hypo it appears that statement at issue was actually an in-court statement, and so not hearsay. But i'm still confused as to the above, which assumes that the person never testified.

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Re: Question about hearsay

Postby DIH49 » Tue Dec 04, 2012 11:41 pm

ph14 wrote:
UCFundergrad wrote:Okay guys, thanks a ton for the help. Since you guys seem willing let me try another one here...

As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E "not to drive it out to San Francisco."

The answer says non-hearsay so I know that much.


Could this statement fall under the exception of "legally operative words," because it might be triggering the legal duty to keep the car within the boundaries of San Francisco? I guess that would be the argument for non-hearsay. And the counter would be, well, it's not exactly like the traditional legally operative words such as "I accept," and is more friends talking to friends without creating a legal duty.

I'm not sure though. What are your thoughts?


Verbal act is my best guess, though this one is kind of weird. I guess the argument is that F's statement by its existence denies E permission to drive the car and therefore the statement doesn't meet 801(c)(2), since it doesn't need its truth to be proven for it to be operative. The weirdness lies in that we don't know where they are. If they live in Vermont then "don't drive to SF" probably operates as to permission about Sacramento. If they live in the Sacramento suburbs, it's not clear "don't drive to SF" is even relevant, unless I'm missing something.

ph14 wrote:It would seem highly prejudicial to get the hearsay statement in by saying it is not being offered for the truth of the matter.


I think this actually answers your question. Hearsay doesn't keep out M's testimony as to L's statement because of 801(c)(2), but that only answers whether the testimony survives the hearsay bar. You could still fail 403, and I think you'd have a pretty good argument that it does, or another of the evidence rules. As to your sky is blue example, I don't understand the FRE as to allow that kind of egregious attempt to get around the hearsay ban notwithstanding the technical correctness. In US v. Check the Court applied the hearsay ban to an officer only repeating his side of a conversation on the grounds that the officer acted as a "transparent conduit" for hearsay. I expect you'd get a similar ruling in the sky is blue case, plus any of the other available objections. But like I said, I'm still in the course, so this is my fairly rudimentary understanding at work.

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Re: Question about hearsay

Postby Gorki » Tue Dec 04, 2012 11:42 pm

ph14 wrote:
UCFundergrad wrote:Okay guys, thanks a ton for the help. Since you guys seem willing let me try another one here...

As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E "not to drive it out to San Francisco."

The answer says non-hearsay so I know that much.


Could this statement fall under the exception of "legally operative words," because it might be triggering the legal duty to keep the car within the boundaries of San Francisco? I guess that would be the argument for non-hearsay. And the counter would be, well, it's not exactly like the traditional legally operative words such as "I accept," and is more friends talking to friends without creating a legal duty.

I'm not sure though. What are your thoughts?


I keep thinking back to the communicative intent aspect. The dude's diary where he kept his secret thoughts (admitted) versus the hypo where the guy plans a huge press event around taking his family to a superfund site to show that "its safe" (excluded). Like you said (we didn't cover the legally operative words though), all F wants to prove is that he did not give permission to go to San Francisco. Is it because the truth of the matter is whether or not E had permission to drive the vehicle to Sacramento, F is merely proving the fact the vehicle cannot drive to San Francisco?

My rationale still feels weak to me.

I swear we discussed a hypo like this in my class and the answer was a lot less convoluted than I thought... But it does seem to be doing the parading of what initially seems to be hearsay into the courtroom on really fuzzy differences as to the "truth of the matter."

EDIT: In regards to the comment about location, I agree. But then again its probably just something where if the geography makes it seem irrational, either opposing counsel tries to 403 it out or the jury just doesn't give a shit about the evidence and it has little impact.
Last edited by Gorki on Tue Dec 04, 2012 11:49 pm, edited 3 times in total.

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Re: Question about hearsay

Postby kalvano » Tue Dec 04, 2012 11:44 pm

I'm still debating on the original one, actually. The hypo says it's being offered "as proof that the time was about midnight when K entered the building."

So the statements are being offered as proof that K entered the building at midnight. So L can testify she saw K coming in, that's not hearsay. But when L testifies that she told M about K entering, that is being offered not just for the timestamp but to prove that K entered the building at midnight, which is exactly what L's out-of-court statement is saying. She is saying "Oh, M, I saw K entering the building a few minutes ago."

M is testifying, and she can say that L told her something just past midnight, but if the statement by L is "I saw K entering the building" and the reason the statement is being offered is to prove that K entered the building around midnight, then what L said matters and M can't testify to what was said, only that L said something to her.


I'm going back to thinking it's hearsay.

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Re: Question about hearsay

Postby ph14 » Tue Dec 04, 2012 11:48 pm

Thanks for the great checklist, Kalvano.

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Re: Question about hearsay

Postby cynthiad » Tue Dec 04, 2012 11:57 pm

kalvano wrote:I'm still debating on the original one, actually. The hypo says it's being offered "as proof that the time was about midnight when K entered the building."

So the statements are being offered as proof that K entered the building at midnight. So L can testify she saw K coming in, that's not hearsay. But when L testifies that she told M about K entering, that is being offered not just for the timestamp but to prove that K entered the building at midnight, which is exactly what L's out-of-court statement is saying. She is saying "Oh, M, I saw K entering the building a few minutes ago."

M is testifying, and she can say that L told her something just past midnight, but if the statement by L is "I saw K entering the building" and the reason the statement is being offered is to prove that K entered the building around midnight, then what L said matters and M can't testify to what was said, only that L said something to her.


I'm going back to thinking it's hearsay.


But it doesn't matter what statement L actually made to M. L could have said "the sky is blue" to M ten minutes after seeing K entering, and then if L testified that she saw K enter and said "the sky is blue" to M ten minutes later, and M testifies that L said "the sky is blue" just after midnight, that would serve the same purpose of timestamping. L's testimony is being offered to prove that K entered the building, and if L testifies that she made a statement to M ten minutes later, M's statement is being offered to prove what time L made that statement.

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Re: Question about hearsay

Postby DildaMan » Wed Dec 05, 2012 12:07 am

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


I used the shit out of that on my exam.



You are my hero. :D




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