ph14 wrote:Would there be a hearsay within hearsay problem with introducing a tape of a television interview? On one hand, it seems similar to a document containing someone's hearsay statement. But on the other, it doesn't seem to fall within the definition of "statement" under FRE 801, which says "oral or written assertion." So I'm inclined to say that it wouldn't be a hearsay within hearsay problem, rather just an issue of hearsay and authentication. Thoughts?
So, the definition of statement under hearsay rule is a person's oral assertion, written assertion, or nonverbal conduct. For there is a hearsay within hearsay, I assume there must be two separate person's oral assertions, written assertions, or nonverbal conduct. There are two persons: the person who was interviewed and the person who record the interview; statements of the person who was interviewed are hearsay. So the question is whether conduct of the person who record the interview, or the recording act was intended as an assertion?
I don't think the recording act was intended as an assertion. Comparing this recording act to the ship captain who walked around and checked out the condition of the ship before sailing on it, this conduct of recording the interview does not seem to assert any additional messages beside preserving what happened in the interview. There may be other facts that indicate otherwise such as the person who recorded the interview edit or publish the interview in ways that demonstrate his intention to assert something. But none of those facts are given here.
So, there is not a hearsay within hearsay. There are just hearsay and authentication issues.