bgdddymtty wrote: BeenDidThat wrote: traehekat wrote:
knickfan wrote:Can someone explain hearsay to me in plain english? I feel somewhat comfortable with the hearsay exceptions but I can't tell hearsay from non hearsay. I flag everything as hearsay.
Easiest way for me to keep it straight is to just look at the content of the statement and ask whether it matters if it is true or not in the context of the rest of the problem. If it looks like it is being offered for its truth, its hearsay. If it looks like it's being offered for some other reason, it's not hearsay.
"Dan killed your wife." to show that Dan actually killed your wife? Hearsay, because it's value depends on whether it is true or not.
"Dan killed your wife." to show adequate provocation for second murder? Not hearsay, because it's value doesn't depend on whether it is true or not, it's value is the effect on the listener and whether it would reasonably provoke him.
And to tack on (though the above is very good), I had this problem before, so the way I attack it is to ask: is the person offering it trying to get the jury/judge to believe what the out-of-court declarant said, or is the person offering it trying to get the jury/judge to believe that
the out-of-court declarant said it? If the 2nd, non-hearsay.
One additional problem, though, for the purposes of the MBE, is that there are a bunch of statements that meet the general definition but are classified under the FRE as "nonhearsay" (e.g., statements by a criminal defendant). There's nothing you can do there but memorize the rules (and use process of elimination).
Just ran across the following in reviewing my notes from the simulated MBE:
Classic MBE non-hearsay:
1. "Verbal acts" (i.e. statements that are in some way legally operative). For example, testimony that non-party person X said "I accept your offer" is not hearsay even if it is being offered expressly to prove that X accepted the offer.
2. Statements that show that someone had knowledge/notice of something. These can be tricky because it often seems like they're being offered for the truth of the statement. For example, in a slip-and-fall case, a witness's statement that he or someone else told a store employee, "there's a spill on aisle 3." This is not being used to prove that there actually was a spill on aisle 3, but that someone at the store had notice that he should go and check that aisle for a spill.
3. Prior inconsistent statements used to impeach a witness. These can also come in as substantive evidence if they meet one of the hearsay exceptions. However, if they're only being used to show that a witness has said two mutually exclusive things at two different times, then it really doesn't matter which one of them is true. The purpose is not to prove the facts asserted in the prior statement, but rather to tell the jury that this witness is not trustworthy.