Question about hearsay

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target
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Re: Question about hearsay

Postby target » Sat Dec 08, 2012 4:04 pm

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.

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DocHawkeye
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Re: Question about hearsay

Postby DocHawkeye » Sat Dec 08, 2012 4:17 pm

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?


It seems to me that it would be just one level of hearsay, since the video tape itself isn't making a statement on its own (without the content) but the content of the tape is. There are a couple of possibilities for getting it in: Does the tape contain a verbal act like defamation? Would it be admitted under the residual exception (807, I think?)?

waxecstatic
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Re: Question about hearsay

Postby waxecstatic » Sun Dec 09, 2012 5:08 pm

DocHawkeye wrote:
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?


It seems to me that it would be just one level of hearsay, since the video tape itself isn't making a statement on its own (without the content) but the content of the tape is. There are a couple of possibilities for getting it in: Does the tape contain a verbal act like defamation? Would it be admitted under the residual exception (807, I think?)?


Residual exception allows in any hearsay insofar as it attaches to one of the recognized hearsay exceptions and has a level of trustworthiness in light of the circumstances. I didn't reap the hypo but I'm studying for an evidence final now.

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ph14
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Re: Question about hearsay

Postby ph14 » Wed Dec 12, 2012 12:48 pm

Is saying someone lied in one specific instance (this dispute) a sufficient attack on character for truthfulness to allow for witness bolstering under FRE 608(a)? Or is it something I'd argue about.

Additionally, under FRE 609(a), what is the balancing test for a civil defendant? Is it just FRE 403? And in a criminal case it is probative value outweighs prejudicial effect to that defendant?

When balancing probativeness/prejudice under FRE 609(a), if it is a witness, what is the prejudice that you are weighing? Probativeness is obviously their credibility. But how would this prejudice the witness, since they aren't on trial? And it doesn't seem that it would affect a defendant/plaintiff.

For impeaching, if you want to impeach with a hearsay statement, do you have to fit it into an exception?

Is a statement hearsay if just offered to show knowledge?

target
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Re: Question about hearsay

Postby target » Sat Dec 22, 2012 6:52 pm

can we burn this thread in celebration? That's what I did to my evidence outline.

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spleenworship
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Re: Question about hearsay

Postby spleenworship » Sun Dec 23, 2012 1:47 am

target wrote:can we burn this thread in celebration? That's what I did to my evidence outline.


Every time this thread pops up I think about my evidence exam and have to fight the urge to cry/vomit




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