Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

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Tanicius
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Wed Jul 08, 2015 7:17 pm

Guide to Bullshitting EVIDENCE

Okay, we have an evidence essay topic. GOOD. Evidence is one of the easiest topics to bullshit on the essays. The reason it’s easy is because there are almost no stupid flow-chart chronologies of reasoning to apply. Hearsay gets a little flow-charty depending on the essay question, but that’s about it. On the whole, almost every question asked on an evidence essay can be answered independently. Is something relevant? Your answer is either going to be a yes or a no. Is something more prejudicial than probative? Your answer is either going to be a yes or no, or the even easier answer of “It depends on the judge’s discretion.” To answer question two about prejudicial evidence, you don’t need to correctly answer question one about relevant evidence. Question number three can be about hearsay, and you don’t need to know the correct answers to questions one or two. That will almost always be how the essays on evidence go.

My problem is I don’t even know where to start answering evidence questions. My answers are all over the place.

The goal we’re going to have for you is to correctly identify the issue then. It’s not as hard as you may think. If you can correctly identify the sub-issue, you will probably be able to remember the rule. You get lost when you can’t distinguish one issue from another, and then you start spitting out rules that don’t even exist or make any sense. Not the end of the world if that happens, but we want to avoid it if we can.

Well, I’m not afraid of essay topics. I’m more stuck on the Evidence MBE’s. Seriously, these are bullshit. Can you help me?

Sure! I have basically memorized the entire Federal Rules of Evidence book because I did mock trial for eleven years and now my real job requires me to know an evidence rules list that is based almost verbatim off the Federal Rules. This post should help you learn some more intuitive ways to understand the actual substantive rules, not just how to bullshit them on an essay. If you need help understanding character evidence or hearsay, I’m your guy.

One thing I like to talk about is why rules are the way they are. That often helps calcify the rule in your mind, if you understand that it makes sense for the rule to be the way it is and not another way.

I’m taking the bar in California. Uh, feelin’ kinda fucked…. Do you have any distinctions explanations?

Yes and no. What I can say is that CA evidence is primarily the same as Federal, with a few basic exceptions and one very complicated exception. The complicated distinction is the Truth in Evidence Act and its progeny alterations over the last few decades, which primarily affects character evidence rules. I unfortunately do not know the details of the Truth in Evidence Act and the changes that came after it. I would be hurting you if you I pretended otherwise, and I probably don’t have time to re-learn and regurgitate those distinctions before you take the real test in two weeks. I do, however, know a few hearsay distinctions, which AFAIK are the only other differences that matter.

Hopefully, by reading this post, you can go back to your CA materials and understand the language of what they’re talking about with a better understanding of what the terms mean for the baseline Federal Rules.


First, let’s break up these topics that you tend to get on the exam:

Evidence has NINE big subjects, which will be broken up into three posts:

1. Relevance
2. The prejudice vs. probative Balancing Test
3. Special policy rules (privilege, religion, sex crime cases, plea bargaining, products liability)
----
4. Character Evidence
5. Impeachment Evidence (related by the not the same as character evidence)
----
6. Hearsay Evidence
7. Hearsay exemptions/exceptions
8. Confrontation Clause (related but not the same as hearsay)
9. Best Evidence (related but not the same as hearsay)

Almost every essay can be broken up into one of those topics. Obviously, they often have more advanced sub-rules, such as the advanced sub-rules for hearsay, character evidence, and impeachment, but on the whole you should be able to determine on the essay what main rule topic they are looking for. The cool thing about a lot of essays for evidence is you win either way: Either they are asking you to answer a very specific questions, like “Can the prosecutor impeach the defendant with the misdemeanor Lying to Police conviction?” or they are allowing you to wax up a ton of bullshit to a super general question with no correct answer, like “Durrrr, um is this shit, like, admissible?”

Uh, question I should have asked earlier. Why do we have all these stupid rules?

Remember this, child: Juries are fucking stupid. That is always the justification for these rules. We don’t trust jurors. They’re wonderful, naïve, innocent little kids, but goddamn are they dumb, far as the courts and legislature are concerned. A juror wouldn’t know what to do with an ice cream cone if you stuck one in her hand, told her to lick the cream part, and demonstrated how to do it with your own identical ice cream cone. You need to like, actually grip her hand with the cone and guide it to her face and pull the tongue out and wipe it across the ice cream and tell her that that’s how you eat ice cream, because she’s just that dumb. And unfortunately, that same moron is one of twelve people deciding if your client is guilty of domestic assault.

So we have all these rules where the legislature basically tells jurors, “No, you don’t get to hear that. And you can hear this other thing, but you can’t use it to determine if the sky is a color other than blue. And when you use this third thing, you’re only allowed to hear one part of it, and you have to consider it green in order to agree that it feels squishy.”

And obviously, since these rules are so intuitive, the jury always understands and applies the evidence they’re given correctly.

________________________________________________________________________________

Chapter 1: Relevance. Starting from the bottom. AKA you neglected to take Evidence in law school and are surprised to find out that Barbri’s 12-hour-long lectures on evidence actually kind of suck and now you need to know WTF is “relevance”?

“Relevance” is the most basic question asked in an evidence topic. For anything to come in, it has to be “relevant.” Here’s a tip: Evidence is almost always relevant. If evidence is not relevant, it’s not “admissible,” which is to say that a jury doesn’t get to fucking hear or see it. Period. In other words, if something doesn’t fucking matter to your case, then why the fuck should you be allowed to talk about it? Remember, this is America, and in America courtrooms cost fucking money. You don’t get to waste my annual ten cent contribution to the local courthouse by talking about your cat Oscar in a murder trial unless Oscar has something to do with the murder, which he fucking doesn’t. (But seriously, we don’t want juries to be confused by evidence that irrelevant to the case. J

Two basic rules they always teach about relevance:

1.) If it’s not relevant, it’s not admissible. (All admissible evidence is de facto relevant; all irrelevant evidence is de facto inadmissible.)

2.) If it’s relevant, it still might not be admissible if another rule excludes it.

Think of relevance like you’re building a brick wall.

Anything that is relevant is something that contributes to the wall. It doesn’t have to “substantially” contribute, or “significantly” contribute, or “greatly” contribute, or be “reasonably relevant” or any such nonsense. The test is fucking simple: It just has to contribute. It has to help in some way.

Ex: When your five-year-old daughter comes up to you with a handful of clay and wipes it across the brick wall you’re building, she’s doing fuck-all to help, but if you think about it she actually is kind of helping. That shitty little wiping of clay on your wall is relevant to the construction of the wall. Just because it doesn’t single-handedly build your whole wall by itself doesn’t mean it’s not relevant. Relevance is a super low bar.

_______________________________________________________________________________________

Chapter 2: The Balancing Test of “Substantially more [BLANK] than probative.” Or: Even relevant shit gets tossed out of the window if there’s a (big) risk the jury won’t know what the fuck to do with it.

So your daughter is helping you build your brick wall in the backyard. She came over to you while you were stacking bricks and wiped a handful of clay across the part of your wall that’s always been stacked, glued, and dried. Gee, daughter, thanks but no thanks. You theoretically helped .0001% to make my wall stronger, but you fucked up the beautiful, perfect aesthetic arrangement of tessellated bricks. Before it looked like a German engineer was building this wall; now it looks like a five-year-old built this wall. Can you leave before you fuck up my wall even more?

That’s the actual language of FRE 403. You can see for yourself right here.

But that actually is what the rule about prejudice is about. The idea is that relevant or probative evidence can still be excluded from the jury hearing or seeing it if there is a high enough risk that it won’t actually accomplish its purpose. If the evidence is “substantially more prejudicial” (or confusing) than it is “probative” (read: relevant), then the jury won’t get to see it.

What kinds of things does the evidence need to be to trip the balancing test? Here’s the actual list from the rule:

- Prejudicial: Your honor, I’m highly concerned that the jury will hold it against my client in this murder trial that the victim’s organs were used in the Will It Blend series on Youtube. Yes, my client's stupid grinning face and excited confessions to the company CEO in the video before the blender is turned on does show awareness that he murdered the victim, which is clearly relevant to his guilt, but it just goes too far to show the jury the actual blending part with all that blood.

- Confusing: Yes your honor, these 5,624 pages of interoffice emails are indeed somewhat relevant to prove that my client committed fraud at the corporation where he works, but they are so full of economic analysis jargon and basic day-to-day, harmless communication with people not involved in this case, that I’m seriously concerned they will not know what any of this evidence actually means. I propose that we only admit 15 pages out of this carton of paper to the jury so that they will know what to actually look for.

- Time-consuming: Yes your honor, it’s true that two minutes into the 911 phone call it sounds like someone whacks the victim in the head with a baseball bat, but do we really need to prove she was unconscious by playing all five hours of the dead silence that follows? Surely just 30 seconds of dead silence is sufficient to prove the point; it’s just a waste of time to make the jury sit there for the entire five hours of silence.

- Cumulative: Judge, seriously, this is the 25th fucking witness the defense is offering from the defendant’s neighborhood community to testify that he is an “upstanding guy” and that he could never murder the victim. It’s not going to be anymore fucking effective than the first 24 witnesses who said the exact same goddamn thing. Can we just move on?

Things to look out for and bullshit on about with the Balancing Test rule:

a. Impeachment. Impeaching someone with convictions of crimes is a technical rule under the Impeachment chapter. Sometimes you have to apply the balancing test for prejudice. Sometimes there is no balancing test in an impeachment. Other times you have to apply a reverse balancing test, where the evidence has to be substantially more probative than it is prejudicial. It all depends what kind of impeachment is being applied.

b. Character evidence. Not the same thing as Prejudice! The policy justifications for banning both types of evidence are more or less the same, but they are two different rules for when you exclude something. So make sure you aren’t screwing up the two different rules. If the question is a general “Is this admissible?” question, the fact that it’s prejudicial and the fact that it’s character evidence are two separate issues to bullshit about.

c. Relevance. Again, an entirely separate rule. Don’t put answers to a Relevance and answers to Prejudice vs. Probative in the same IRAC. They each deserve their own IRAC.

d. The answer to a Balancing Test question can very commonly be qualified with “The judge will probably do X, but it is a highly discretionary ruling that could go both ways.” That’s because how prejudicial a piece of evidence is, is something that’s up to each individual trial judge. Appellate courts almost never question a trial judge’s ruling on prejudicial evidence. The trial judge’s decision about how prejudicial a piece of evidence is usually has to “shock the conscience” or some ridiculously impossible standard like that.

________________________________________________________________________________

Chapter 3: Special Policy Rules on Particular Pieces of Evidence

These are pretty simple, especially when you actually explore the policy reasons for why these highly individualized rules exist. If you’re curious, there are actually a long assortment of policy rules in the FRE. You can find them spread out between Rules 407 through 502. Rule 610 is another random policy rule.

Just gonna go through them all. Don’t worry about memorizing these if you don’t have the time. They’re going to be no more than 1/4th or 1/3rd of an entire essay topic’s material. Try to figure out if a question is asking about a particularized policy rule, and if you can’t remember the specific rule itself, just fucking make it up. Seriously, you’ll still get points for it.

a. “Subsequent Remedial Measures.” This is a super specialized rule that is implicated ONLY in a products liability lawsuit’s trial. The rule is that you don’t get to sue a company for a defective product and then use against the company evidence that they fixed the product after someone was injured by the product. In other words: You can’t prove a product is defective by pointing to the REMEDIAL measures the defendant company took to fix the product, if the fix happened SUBSEQUENT TO (after) the injury. Why don’t we let this happen? Because we’re worried about a very obvious chilling effect here. We don’t want companies finding out about a dangerously defective product and then refusing to fix it because they know the act of fixing their product will be used against them in trial. Imagine if Honda Civics made in 2016 exploded when they drove faster than 60 MPH and Honda refused to fix the car or tell people about the problem because they didn’t want to lose a trial? That would be shitty.

I see people wrongfully apply the subsequent remedial measures rule a lot. People get confused and think it means you can’t talk about ANYTHING that ANY party did after any kind of tort or crime. That just isn’t true. This rule doesn’t prohibit a prosecutor, for example, from cross-examining the defendant on what he did with a murder weapon after killing the victim. It also doesn’t apply in other civil matters, either. For example, if you think about it, when you’re a defamation defendant and you apologized and retracted a defamatory newspaper article, you would expect the remedial measures rule to help you out, but it doesn’t. Defamation is not a products liability case, so this rule is not your friend.

b. Plea offers, negotiations. You don’t get to talk about what happened during a plea negotiation when you’re in trial later. Again, think about the chilling effect. If criminal or civil parties knew that a prosecutor or some other attorney could use their statements made in a plea negotiation against them, they wouldn’t fucking negotiate anything!

Just keep in mind that this rule only prohibits using the info from a negotiations conference/offer to actually prove guilt, culpability, liability, or damage amount. It does not prohibit you from using the info from a negotiations conference or offer to prove some other fact, like a witness’s bias or prejudice against someone else in the trial. Say for example that you’re a plaintiff in a defamation trial. You don’t get to use the statements by the defendant in the negotiations conference where he says he hates your guts, because that proves liability on intent to defame you. But if the defendant’s friend shows up in the negotiation conference and he admits to hating your guts, and if he testifies on the stand to say that the defendant is a swell guy, you could cross-examine the friend with the statements he said in the negotiation conference to prove that he hates your guts and that he’d lie under oath to hurt your case. If that’s too overly complicated for you, just forget it and focus on the bare-bones rule contained in the first paragraph.

c. Offers to pay medical expenses. You don’t get to use these against a defendant in a tort involving an injury. Pretty simple really. The chilling effect would be bad. We don’t want defendants to stop offering to pay medical bills at, say, the scene of the accident because they fear their offer to pay the hospital will be used against them in court. By all means, if you want to pay my medical bills in an accident, you should be allowed to do that without being punished for it later on at trial when you refuse to admit liability.

d. Sex crime cases. We’re not going to get into this. I don’t think this is on the bar. The short-answer is that you don’t get to cross a victim in a criminal sex case about her sexual history. The legislature has decided that this shit is just not relevant enough to talk about, and too many defense attorneys have abused this evidence in order to intimidate victims from taking the stand.

There are also rules about when you can use a sex crime defendant's previous sex crimes against him at the trial for a more recent sex crime. The answer is generally that you can do this, even if it would violate other rules about character evidence. Against though, this isn't really on the bar, so pretend you don't know anything about it unless you were taught otherwise by your bar prep company.

e. Whether or not a party has liability insurance. You don’t get to talk about this at a civil trial whenever liability or damages are in dispute. This is because the legislature has recognized the well established risk that a jury will use it improperly. If a jury hears that the plaintiff in a car accident had liability insurance, they may throw up their hands and decide to let the defendant off because they think the plaintiff’s insurance company will just take care of everything and they don’t need to spend another day away from work deliberating about whether the drives of the second car is negligent. That’s just one of a ton of examples you could dream up where it would be inappropriate to talk about the existence of liability insurance in front of a jury.

Again though, this shit is allowed in if it goes to some other purpose than liability/damages, such as proving that a witness is biased. “Isn’t it true, ma’am, that you didn’t have insurance when you drove that day, and now you’re lying about a bullshit accident with my client when there was no accident and you’re just trying to find a source of someone to pay for YOUR mistakes?” Think about that for a second. That’s technically allowable, but you would get into the Balancing Test and also have a follow-up IRAC about whether there’s a substantial risk that the jury would be confused and improperly use that evidence to determine fault/damages.

f. Religion. You don't get to question a witness about their religious beliefs in order to attack their credibility. (But if you think about it, maybe we really should be allowed to do this. :x )

g. Privileges. Oh boy. This shit sucks. Doctor-patient privilege and attorney-client privilege and pastor privilege and marital privilege. They all have their own different rules, and they’re all different in each state. I can’t remember what the common-law answer usually is on these matters. Just look it up in your bar prep textbook if you need to know more about privilege. The upshot is that the material itself isn’t too hard to understand.

________________________________________________________________________________

Stay Tuned for the next post, which is about Character Evidence and Impeachment. Probably not happening tonight, but may tomorrow. Hearsay, Confrontation and Best Evidence will follow in a third post.
Last edited by Tanicius on Wed Jul 08, 2015 8:36 pm, edited 1 time in total.

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lacrossebrother
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby lacrossebrother » Wed Jul 08, 2015 7:30 pm

These are awesome. Thank you very much. I'm trying to format these in word to make printing a little easier. Would you want to post dropbox links?

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Tanicius
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Wed Jul 08, 2015 7:51 pm

lacrossebrother wrote:These are awesome. Thank you very much. I'm trying to format these in word to make printing a little easier. Would you want to post dropbox links?


I tried just copy pasting the whole post and it worked fairly well.

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milesdavisjd
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby milesdavisjd » Wed Jul 08, 2015 8:40 pm

Am I an ass for requesting one of these for Contracts? I could mail you an edible arrangement or something in thanks. :lol:

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Tanicius
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Wed Jul 08, 2015 8:46 pm

milesdavisjd wrote:Am I an ass for requesting one of these for Contracts? I could mail you an edible arrangement or something in thanks. :lol:


I am simply not qualified to talk about contracts. I averaged 55% on a good day of MBE Contracts questions. On my actual bar exam, I bombed the entire essay and failed to realize that the question about sale of goods, and thus neglected to apply the UCC rules that were the only rules that mattered in the entire problem. :)

old_soul
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby old_soul » Wed Jul 08, 2015 9:26 pm

@Tanicius, you're AMAZING for doing this, thank you so much. Like, I could name a child after you! :P :D

The only other weird topic in the MBE is Property, specifically, Mortgages. If you um, have time sometime in the next two weeks...we'd love to read more.

Thank you so much!

redblueyellow
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Wed Jul 08, 2015 10:42 pm

Tanicius wrote:Guide to Bullshitting EVIDENCE


Stay Tuned for the next post, which is about Character Evidence and Impeachment. Probably not happening tonight, but may tomorrow. Hearsay, Confrontation and Best Evidence will follow in a third post.


What is this?! Are you a drug dealer? First hit is free and then you have to wait/pay for more hits?!

I WAS LEARNING EVIDENCE, DAMNIT. GIVE ME WHAT I NEED!




Thanks, dude. These are stupid easy to understand, and your experience in the field (such as when you insert commentary about subsequent remedial measures, sex crimes, etc) makes these really interesting to read.

This is like law for dummies, where I'm the dummy, and I'm feeling super smart after reading these.

redblueyellow
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Wed Jul 08, 2015 10:44 pm

old_soul wrote:@Tanicius, you're AMAZING for doing this, thank you so much. Like, I could name a child after you! :P :D

The only other weird topic in the MBE is Property, specifically, Mortgages. If you um, have time sometime in the next two weeks...we'd love to read more.

Thank you so much!


Yes, alright, fine, let's add property+mortgages to his list.

We're going to also need Civ Pro.

And since you're doing these already, Con Law would be nice.

By the way, how do you feel about Remedies?

Also: Corps

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby ymmv » Wed Jul 08, 2015 10:44 pm

This may be post for post the best thread on TLS.

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby murray18 » Wed Jul 08, 2015 11:25 pm

Holy shit, these are helpful.

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Tanicius
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Thu Jul 09, 2015 2:04 am

Evidence Part 2. The Scary Hearsay Part (Or so you’ve been told, but you should discount what you’ve been told, because that’s hearsay.)

Yup. We’re covering the big bad wolf in Part 2 instead of 3. And there’s going to be more than 3 Evidence sections now. I’m splitting hearsay up into multiple posts itself, just to make absolutely sure that the concepts stick. Only after multiple sections on hearsay will we move to Character Evidence and Impeachment. That’s because in my opinion, I actually think Hearsay is easier to understand than Character Evidence. How well you understand Character Evidence is actually kind of linked to how well you can understand Hearsay. If you think you understand Character Evidence but can’t wrap your head around Hearsay, then you are probably wrong about Character Evidence too.

It’s not that the answer to any Character Evidence questions will hinge on the answer to a Hearsay question. It’s just the logic behind the prohibitions against Character Evidence is more or less the same logic behind our prohibition against Hearsay. You need to understand both, and the logical underpinnings of both really do start with the rule against hearsay evidence.

We’re gonna cover this topic in three main sub-rules:

A. Hearsay Defined (What is it?)
B. What is NEVER fucking hearsay?
C. Hearsay exceptions when the person who said the hearsay is not available to be called as a witness
D. Hearsay exceptions when we don’t care if the person who said it is available to call as a witness

(In law school and bar prep companies, they usually teach topics C and D in reverse. We’re going to do it the logical way though, so screw how they do it.)

Chapter 4: Hearsay Defined

Tanicius, please. Just please tell me what the fuck hearsay is. I took the class in law school. I did mock trial. I even did a trial during my 2L summer internship at the local DA’s office. I still don’t know what the hell it is, and I don’t think any of my bosses or adjunct professors did either! For the love of God just tell me what it is.

Chill the fuck out and step away from the computer. Hearsay is actually one of the simplest concepts we learn about in law school. It’s an incredibly logical rule that has some very good sense behind it from both a historical and a practice standpoint.

The hearsay definition has three technical requirements, but before we get to those, let’s first conceptualize it more casually.

Hearsay basically means that we refuse to let the jury rely on shit that any half-ass weirdo on the street says is the truth. Rumors, innuendo, or as the good journalists at FOX love to cite to, the things that “some people say,” without clarifying who is saying it or why, or what that person has to gain by saying it. The idea is that it’s dangerous to let a jury rely on such evidence because we can’t trust the jury to give hearsay evidence proper weight. They will hear some shitty rumor from a toddler and believe that toddler’s claim that the defendant’s DNA was found at the murder scene. Because they’re jurors, and jurors are dumber than rocks.

Basically, we ban second-hand information from being heard by the jury because it’s not feasible to cross examine whoever said that second-hand info, since they are not in court on the witness stand and are not available to be cross-examined.

Relying on hearsay in court is the equivalent of citing Wikipedia on a college essay. You can’t do it, absent some special permissions in advance by the professor. If you’re going to rely on hearsay in court, you need to come armed with citations to exceptions in the law that explicitly let you do so.

The Three Elements of Hearsay:

So hearsay is actually not just a random rumor. It’s actually a very particular kind of second-hand statement. Here is the definition law professors give that nobody remembers after completing their final:

1. a statement
2. made by the declarant in a setting that is outside the trial court
3. used to prove the truth of the statement

So let’s break that down. First, what is a statement? This is generally a pretty easy question. A statement is a linguistic term. It means a claim. What are not statements? Questions, commands/imperatives, and incomprehensible sentence fragments.

The easiest way to tell if something is truly a statement or something else is by asking TRUE OR FALSE. If there is an answer to the “true or false?” query, then it is a statement and it may be hearsay. If it is not possible to hypothetically answer the query with “true” or “false” – i.e. if the thing being said is not falsifiable – then it cannot be hearsay.

Pop quiz!

- “Honey, I’m home!” Statement or something else? TRUE OR FALSE? Answer: It is a statement. It can be true or false. The person is declaring that something is true – namely, that he is home. He is either stating that he is home truthfully, or he is lying, or he is mistaken.

- “Honey, did you lock the door when you left for work today?” Statement or something else? TRUE OR FALSE? Answer: Neither. Therefore, NOT a statement, and thus there is literally no need to examine whether it’s hearsay any further. It is not a statement because it is not declaring anything to be true or false. Rather, the husband is asking if something is true. Policy wise, the legislature isn’t concerned with banning this evidence from the jury’s ears because there is no risk the jury will misinterpret “Did you lock the door?” to mean that the husband is affirmatively saying the door was locked or not locked. They aren’t going to use “did the lock the door?” to conclude that the door was locked. It can’t be hearsay.

- “Honey, please pick up some milk on your way home today.” TRUE OR FALSE? Answer: Neither. It’s an IMPERATIVE, a COMMAND, not a statement. So, again, not hearsay. Seasoned attorneys object to this shit all the time, with laughable lack of thought behind the objection. “I told Jim to go fuck himself.” “Objection, hearsay!” Lolwut? What exactly is the TRUTH VALUE of “Go fuck yourself?” It’s not provably true or false, so it’s not a statement and it can’t be hearsay.

- Last one. If you don’t get this right, I swear… “Honey, I can’t toaster he plugged in garage car red.” TRUE OR FALSE? Obviously neither. Thus not a statement, thus not hea— Okay, now you’re getting it!

But what about SNEAKY statements? What about NON-verbal CONDUCT or CODE WORDS?

Additionally, what if someone is asking a question in a way intended to communicate truth value? "Honey, you sold our car to a scam artist, didn't you?" That's a statement. Or what if you disguise something in code? "Abort, abort!" is a command that may be code language for "The cops are here!" Non-verbal conduct and code words may all count as “statements” under the rule of hearsay. The question is whether the person saying or doing the behavior INTENDS to be declaring or claiming something. Is their conduct an attempt to ASSERT the truth of something?

For example, in the movie John Wick, Keanu Reeve’s character kills 12 home invaders in his home. He then picks up a phone and calls some dude and says “I’d like to make a dinner reservation for 12.” The next scene cuts to his front door, and a bunch of Mafia evidence cleaners have arrived to dispose of the 12 dead bodies in Reeve’s home.

Is that a statement that could qualify as hearsay? Absolutely. Reeves is intending to declare that he has 12 dead people at his house. There is truth/falsity to what he is saying. Therefore, the court would ask additional questions about the statements and possibly regulate and even exclude their use from a trial.

That’s a code word. What about non-verbal conduct? I’m a rebel spy and I see some enemy troops walking my way, so I tap my head with two fingers to alert the sniper on the rooftop above me to expect trouble. That’s a statement.

What’s never a statement?

Easy. Animals, computers, robotic machines. A roadside sign is not hearsay; it was produced by a fucking machine press, so we aren’t concerned that it’s trying to lie about the roadside conditions coming up ahead. Your calculator’s mathematical result for an equation is not a hearsay statement, even though it’s a declaration asserting a truth value that 2+2 = 4. And your dog’s excited bark in affirmation that he wants to go on a walk is not a hearsay statement because the legislature has determined that all of these sources are not subject to the same manipulative ability to LIE like all humans are. We de facto allow them in unless they trip some other evidentiary rule like Unfair Prejudice or Relevance.

Hearsay Requirement Two: That it be made outside the court.

What this rule really means is that any statement made by someone who is not testifying on the witness stand, while they are testifying on the witness stand, is subject to a hearsay analysis. And they have to be testifying on the witness stand in THIS EXACT TRIAL.

Some fairly easy examples:

- You testify at your own trial. You tell the jury not to trust the cop, the lynchpin witness for the prosecutor’s case. You tell the jury not to trust the cop because you actually spoke to the cop yourself a month ago before trial, and the cop admitted to you that he knows you’re innocent and he just hates you, so he wants to get you convicted of a crime you didn’t commit so you go to jail. The cops statements to you were made outside of court, and they are thus subject to hearsay analysis.

- Your brother testifies at your trial. On his way home from court, he dies in a car accident. Your trial results in a hung jury, and the prosecutor decides to try you a second time. Your brother is dead and can no longer testify for you during the second trial. Uh oh. His first trial testimony is technically a statement made outside of court. It’s thus all subject to being excluded under the hearsay rule unless it comes in under an exception or exemption. Fuck, right?

- You take the witness stand in your brother’s trial. The attorney attempts to get you to talk about statements you made to your brother BEFORE you stepped foot into the trial courtroom. Boom, that’s a statement made outside of court. It is subject to a hearsay analysis. Just because you’re presently on the witness stand does NOT mean you get to offer anything you ever said before in life.

Whoa whoa whoa. That last one doesn’t make any sense. I thought the hearsay rule was founded on the principle that we don’t want hearsay coming in because we can’t cross-examine the person who said the hearsay. But if things a testifying witness said in the past are hearsay, where is the problem? They can be cross-examined right fucking now!

I know. It’s stupid. Many states diverge on this rule and say that statements by a testifying witness, even if made outside of court at a previous time, are not hearsay. But for purposes of Bar Examistan, EVERYTHING said outside court is at least subject to being excluded, provided it has the rest of the requirements for hearsay.

A crucial point here is that a statement can be made "outside of court" even if the statement itself came in from a previous trial where the declarant was subject to cross-examination. Being subject to cross-examination at a previous time does not avoid the hearsay rule. It may avoid the Confrontation Clause, but any statement made not at THIS EXACT TRIAL is a statement that is "outside of court."

Third and final element for hearsay: THE TRUTH OF THE MATTER ASSERTED (which just means the literal truth of the statement itself)

“Mr… Jones! Tell us, the class, what is hearsay?” “Um, hearsay is any statement, made outside of court, offered… toprovethetruthofthematterasserted, um, yeah.” The professor looks at you and sheepishly nods. Why yes, dipshit, you correctly recited the verbiage. But tell the class what the fuck “truth of the matter asserted” actually means. Go ahead, dumbass. I dare you. You can’t do it, can you?

This is the most misunderstood element in all of evidence! It is the equivalent of the Rule Against Perpetuities in Property Law. So few people correctly maintain in their brains what “truth of the matter asserted” means. They may understand it for a flickering moment the day before their final exam in Evidence in law school, but then they forget it before they’re halfway done with the first celebratory gin and tonic. Which is why professors often don’t use this language, and which is also why your bar prep course may well have used different language too.

Unfortunately, no matter how many times people hammer this phrase or easier phrases into your head, it just hasn’t stuck, has it?

The third requirement for hearsay is that it be USED IMPROPERLY. That’s really the gist of the rule. Hearsay is FINE depending on WHY you are using it. It’s only ever defined as improper hearsay when you use it for the WRONG REASON.

Think about this example: You are writing a paper ABOUT Wikipedia. You are specifically writing your paper about Wikipedia in order to attack the veracity of Wikipedia. You include in your paper several examples of shitty Wikipedia articles, such as a Wikipedia entry on Bigfoot, and another Wikipedia entry claiming that aliens and UFOs are real and the US has been guarding a Martian space ship in Area 51 for the last 60 years. And then you get your grade back from your professor, and you got an F. There’s a note in red ink on your paper saying “I told you: Never cite to Wikipedia.” WHAT THE FUCK?? How are you supposed to write a paper about Wikipedia without using examples from Wikipedia to prove that Wikipedia is a shitty website? You weren’t using Wikipedia to prove that UFO's exist, which is the content of the article you quoted. You were using Wikipedia as a demonstration of HOW the website is shitty. What’s the problem??

The problem is that your professor didn’t understand your reasoning for citing to the Wikipedia page. You were not offering the Wikipedia articles to prove the truth of the matters asserted in those Wikipedia pages. Rather, you were offering the Wikipedia articles to prove that Wikipedia is a shitty fact-checking website. Two totally different conclusions! One is reliable and has been backed up by evidence; the other conclusion would be based on flimsy, unsafe evidence.

Think of the “TRUTH OF THE MATTER ASSERTED” like LITERAL truth value: You have to be offering the hearsay statement to prove that the THING CLAIMED INSIDE THE STATEMENT ITSELF IS LITERALLY TRUE. Any other reason you offer a statement makes it NOT hearsay.

_______________________________________________________________

Pop quiz!

- “If your father saw you today, he would be rolling over in his grave!”

Am I saying that to you to prove the truth of the matter asserted? Yes or no? Answer: NO! I am not LITERALY telling you that your father is actually physically rolling over in his grave. I am instead communicating to you that I think lowly of your behavior. If you’re on trial for killing me after I riled you up with that inflammatory statement, the prosecutor could offer it against you to prove something OTHER than the truth of statement itself. It would go like this: “Objection, hearsay.” Prosecutor: “Your honor, I am not offering this statement to prove the truth of the matter, that Mr. Jones’s father actually ever rolled over in his grave. Instead, I’m offering this statement to prove motive for the defendant to kill the agitator. The victim insulted his father, so the defendant shot him dead out of revenge.” Over. Fucking. Ruled.

- A super dirty, odorous unhealthy looking man with missing hair and teeth runs up to you on the street and says “Give me all your money! I’M JESUS CHRIST!” A party offers “I’M JESUS CHRIST” in court.

Think about this. It COULD be hearsay depending on what the party offering the statement is trying to do, but it almost certainly is not being offered for the truth of the matter asserted. A party couldn’t offer that statement to prove that you met Jesus Christ the other day. But they COULD EASILY offer the statement to prove that the man you ran into is FUCKING MENTALLY ILL.

These two issues touch on a huge problem with how people understand hearsay. Hearsay is not a rule that prohibits you from using out-of-court statements to prove YOUR CASE. You are allowed to use outside statements to prove your case in a million different ways. What matters is when you are using outside statements to prove the LITERAL TRUTH of the statements themselves.

____________________________________________________

Here are some exasperating examples of abuse of "truth of the matter" where lawyers don't know what they're talking about:

- Child victim in a molestation case: “Well, my dad told me it’s bad to talk to strangers, so I decided to run away from the defendant's ice cream truck.”
- Opposing counsel: “Objection hearsay.”

Are you fucking serious?! Do we contest the literal truth of the concept that it’s bad to talk to strangers? That is obviously NOT why the prosecutor is offering this evidence. He doesn't even care whether it's bad to talk to strangers, which is the literal truth of the statement the child gave outside of court. He's offering it to explain why the child on the witness stand refused to talk to pedophile who’s on trial today.

- Opposing counsel: “That’s exactly why it’s hearsay! He's using the statements about strangers to prove that the victim did not consent to getting into the defendant’s car.”

Noooooooo! He is ALLOWED to do that! The hearsay rule only polices the LITERAL truth of the content of the statement, not the ULTIMATE ISSUE he's using the statement for.


Another one:

- Journalist witness in a defamation trial: “As a journalist, I needed to collect more information, so I decided to talk to a gentleman who works at the stadium.”
- Counsel: “What did he say?”
- Journalist witness: “Well, he told me that it was all an accident, but I didn’t really trust him.”=
- Opposing counsel: “Objection, hearsay.”
- Counsel: “Not offering it to prove the truth your honor. I actually believe the stadium worker’s claim that it was all an accident is WRONG, so I am NOT offering it for the truth. Instead, I’m offering it to prove that the journalist actually did his research before running the story.”
- Opposing counsel: “That’s exactly what hearsay is your honor. They’re using it to prove the ultimate issue, which is that the journalist did his proper homework and didn’t negligently run the story.”
- Counsel: “Your honor, that’s actually exactly what I’m allowed to do. It would only be hearsay if I was using it to prove the shooting was an accident instead of a murder.”
- Smart judge: “Yeah, agreed. Objection overruled.”

Hm. What about code words though? If hearsay only applies to the literal truth contained in the statement, then how is John Wick’s “Dinner reservation for 12” request hearsay? The literal truth is that he needs a reservation for 12, not that he needs a Mafia crew to clean up 12 bodies.

Fair question. But it’s still hearsay before we look to what the DECLARANT (the person making the declaration) is intending to communicate. If the proponent of the evidence and the declarant of the statement both have the same exact intention, then it is hearsay. If John Wick was really asking for a cleanup crew for 12 bodies, and if a prosecutor is in fact offering the statement to prove that John Wick was asking for a cleanup crew for 12 bodies, then that is hearsay and it can only come in if an exemption or exception applies.

___________________________________________________________________________________

Chapter 5: What is NEVER Hearsay (Hearsay “exemptions”)

I’m not going to get very technical on this section, because it just isn’t as complicated as defining hearsay. This is more of a list of things to look out for. These are types of hearsay that, for legal reasons, are just not called hearsay. The law says “I don’t care that this is technically hearsay. I’m going to call it not hearsay.” The word sometimes thrown around is hearsay “exemptions.” Exemptions are different from exceptions. Exceptions are hearsay, they are just admissible exceptions. Exemptions are just not called hearsay, even though they completely function as if they are exceptions.

Here are the important exemptions:

A. Party opponent admissions (and there are five of them, which you can find under 801(d)(2), but we aren’t going to concern ourselves with them because is about how to bullshit evidence on the essays, and you rarely need to know such advanced rules on the essays.
B. Prior statements by a testifying witness that show an inconsistency in the witness’s testimony
C. Prior statements by a testifying witness that respond to an attack on the witness’s credibility

Important California distinction: CA doesn’t seem to care about the idea of “not hearsay” and “hearsay exceptions.” From what I understand, CA just lumps everything under an “exceptions” umbrella.

Exemption A. THE MOST IMPORTANT EXEMPTION: PARTY OPPONENT ADMISSIONS

Remember this rule every time you are analyzing whether something “is hearsay.” It is literally part of the definition of Hearsay under Rule 801, the rule that defines hearsay, that nothing your party opponent said before trial constitutes hearsay. NOTHING they said earlier is earlier. It will NEVER be blocked by the hearsay rule.

If you are the plaintiff in a lawsuit, and the defendant came up to you the day before trial and said “I totally fucked you over with my driving that day, didn’t I?” you get to take the stand in court and say “He totally admitted to being negligent and causing our accident the day before this trial started.”

If you’re a plaintiff in a lawsuit, and the defendant comes up to you sometime before trial and says “I like puppies,” it’s still an admission by a party opponent.

Wait a second. I thought only statements against interest were an exception to hearsay. You mean a party opponent doesn’t even have to be saying something harmful for their case, and it still counts?

YES. Statements against interest are an exception to hearsay we discuss later. They are not the same thing as admissions by a party opponent. Under the “admissions by party opponent” rule, NOTHING YOUR OPPONENT COULD POSSIBLY SAY will be barred by the hearsay rule itself, provided YOU are the one offering the statement at the trial.

Think of the “admissions by party opponent” rule like you think of "adversarial diversity." What matters is diversity of sides for the statement to come in under this rule – diversity of sides on a case. A prosecutor can offer the statements of the criminal defendant as a party opponent admission, but the defendant himself cannot offer evidence a co-defendant, because the co-defendant is not adversarially diverse from him. They are not on opposite sides.

This rule seems unfair. Why the shit is it this way?

The idea is that if you have gotten your hands on some damaging testimony from your party opponent, you should always be allowed to offer those statements to the jury because there is this wonderfully capable person already present in court who can confront the source of these admissions and clarify the statement at any time: the party opponent himself!

Uh, what?

Lemme explain what I mean. Let’s say a detective interrogates you and gets a full-scale confession of guilt from you. You deny that your confession is accurate, but the detective gets to offer your full confession into evidence as an admission by a party opponent. With me so far? So let’s say you want to attack this evidence. You think it’s bogus. That’s fine! Just take the witness stand and say so! That’s as simple as it is! Party admissions are always admissible against that party because the party that allegedly made the statement is sitting right fucking here in court. It’s not like regular hearsay where the source of the information is usually a person from outside the courtroom that we can’t bring to court and question ourselves. In short, there’s never a concern that the source of a party admission, the party himself, will be misquoted or misunderstood, because he’s right fucking there in the courtroom and can clarify that shit all he wants.

[b]Here’s the list of certain kinds of party admissions that are never hearsay. We’re not going to get into them in any detail, but they’re handy to know about if you want to rule the requirements for them under Rule 801(d)(2):

i. was made by the party in an individual or representative capacity (this means either you yourself or a person with representative duties, like a parent or guardian, made the statement on your behalf)

ii. is one the party manifested that it adopted or believed to be true (for example, a detective types up a confession of guilt, and you adopt the confession by signing your name to it)

iii. was made by a person whom the party authorized to make a statement on the subject (example: you give your friend a list of things you want them to say on the website they are making for you)

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed (this is the vicarious liability version of party admissions; someone who works on the ground floor of a peach canning factory can make damning statements about the quality of the canning process, which can be used as admissions by the company itself in a products case against that company)

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy (These means even a co-defendant in a criminal can count as YOU if they made admissions concerning a criminal conspiracy, WHILE the conspiracy was going on. If you’re a bank robber standing in a bank during a robbery, and your partner says “Fuck these people, let’s kill them all,” his statements get to be used against YOU at your bank robbery and felony murder trial.)

Exemption B. Prior statements by a testifying witness, used to show an inconsistency in their testimony

Pretty simple. If a witness takes the stand, you can offer anything the witness outside of court at a previous time, and it will not be defined as hearsay, provided you are using it to show that the witness’s testimony is inconsistent.

Pretty simple example: “Ma’am, you just said that your son Johnny would never commit a crime, that he’d never so much as hurt a fly. But isn’t this right here a printout from your Facebook wall from three years ago, where you say, and I quote: ‘Damn I wish my son Johnny wouldn’t beat up so many toddlers. I hate when he accidentally kills toddlers.’ Did you in fact say that?”

It’s not objectionable under the hearsay rule because it’s a “prior inconsistent statement” by a testifying witness.

Exemption C. Prior statements by a testifying witness, used to rebut the witness’s credibility

This is now the exact opposite of Exemption B. This will only be allowed AFTER the witness has already had her credibility attacked. You can use this exemption to offer previous testimony by the same witness that is CONSISTENT with her account.

I’ll use an example that happens a lot in criminal court with domestic abuse cases. The victim takes the stand and tells the jury about the day of the incident. She tells the jury that she was beaten up by her husband. Then the defense attorney gets up, and confronts the victim with a recantation she gave police a day after the incident, a day after her husband was beaten up. In the recantation she says “There was no beating. It was just a harmless argument.” That would all come in under Prior Statement of Inconsistency.

With me so far?

Now, the prosecutor gets back up, and shows that the victim made several confirmatory statements in the days after the beating and the recantation, such as a hospital visit with a nurse one week after the beating, where she confides in the nurse that, yes, she really was beaten up, and now she’s concerned that her wrist might be fractured. That would be constitute hearsay either, since it’s a “prior consistent statement” used to rebut a previous attack on her credibility.
Last edited by Tanicius on Fri Jul 10, 2015 7:35 pm, edited 1 time in total.

old_soul
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby old_soul » Thu Jul 09, 2015 2:31 pm

:D You're awesome!

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby mushybrain » Thu Jul 09, 2015 7:31 pm

Thanks so much for all of this, particularly going through the trouble of doing Evidence.

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Fri Jul 10, 2015 4:57 am

These are awesome, thank you!!

John Wick example was on point!

I was a bit confused here:

"- Opposing counsel: “That’s exactly why it’s hearsay! He's using the statements about strangers to prove that the victim did not consent to getting into the defendant’s car.”

Noooooooo! He is ALLOWED to do that! The hearsay rule only polices the LITERAL truth of the content of the statement, not the ULTIMATE ISSUE he's using the statement for."

The objection is over the truth of "[child] decided to run away from the D's ice cream truck." I seem to understand that literal interpretation of this fragment of the entire quotation is invalid as hearsay because b/c truth of the matter asserted. So the point of the first part of the sentence "my dad told me it's bad to talk to strangers" acts as a "therefore/thus" type modifier? In other words, counsel would argue that "i'm not saying that the child ran away from the D's truck," but that "i'm saying that the kid knows it's bad to talk to strangers" and therefore he would not have talked to the D and (mental leap) ran away from the ice cream truck?

You touched on that part when you said "he's offering it to explain why the child on the witness stand refused to talk to pedo who's on trial today," but, so I'm assuming that my poorly worded explanation is correct, but I'm not seeing how one could make the mental leap for every similar scenario. For example:

College kid in drug possession case: "Well, my dad told me it's bad to do drugs, so I decided to not take defendant's offer to do drugs."
Opposing counsel: "Objection, hearsay."

In context, does the same analysis apply? This is a college kid, likely on campus, where independent thought and independence often takes precedence over what your parents may have told you. The kid could be lying and said that because of his upbringing he wouldn't have done/taken any drugs, but in reality, he may have. If opposing counsel's objection is overruled, then we've now introduced evidence suggesting that kid's upbringing as a defense to him taking drugs?

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Fri Jul 10, 2015 5:02 am

This example makes a lot of sense:

"- Journalist witness in a defamation trial: “As a journalist, I needed to collect more information, so I decided to talk to a gentleman who works at the stadium.”
- Counsel: “What did he say?”
- Journalist witness: “Well, he told me that it was all an accident, but I didn’t really trust him.”=
- Opposing counsel: “Objection, hearsay.”
- Counsel: “Not offering it to prove the truth your honor. I actually believe the stadium worker’s claim that it was all an accident is WRONG, so I am NOT offering it for the truth. Instead, I’m offering it to prove that the journalist actually did his research before running the story.”
- Opposing counsel: “That’s exactly what hearsay is your honor. They’re using it to prove the ultimate issue, which is that the journalist did his proper homework and didn’t negligently run the story.”
- Counsel: “Your honor, that’s actually exactly what I’m allowed to do. It would only be hearsay if I was using it to prove the shooting was an accident instead of a murder.”
- Smart judge: “Yeah, agreed. Objection overruled.”"



The statement is not being introduced to show that the shooting was an accident or a murder, but rather, just to show that the journalist did his due diligence in asking around likely as a defense against defamation. So it's more a "I'm introducing this statement as proof that I did research; it matters not what the gentleman said, but just that I did my duty as a journalist to get more details." Right?

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Fri Jul 10, 2015 8:36 am

The objection is over the truth of "[child] decided to run away from the D's ice cream truck."


No. "I ran away from the ice cream truck" was not a statement was that made outside of court. That was only said in court. Witnesses are allowed to tell you what they did at an earlier time. What the hearsay rule polices is what they heard or said before coming into court.

In other words, counsel would argue that "i'm not saying that the child ran away from the D's truck," but that "i'm saying that the kid knows it's bad to talk to strangers" and therefore he would not have talked to the D and (mental leap) ran away from the ice cream truck?


That is a long stream of circumstantial dots that are not necessary to argue. The prosecutor can argue that the child really did run away from the truck because a witness testified in court that they ran away from the truck. There's no hearsay issue regarding whether the child ran away from the truck. The only question for hearsay is whether "It's bad to talk to strangers" can come in, because that is a claim that was made by someone not in court: the father.

College kid in drug possession case: "Well, my dad told me it's bad to do drugs, so I decided to not take defendant's offer to do drugs."
Opposing counsel: "Objection, hearsay."

In context, does the same analysis apply? This is a college kid, likely on campus, where independent thought and independence often takes precedence over what your parents may have told you. The kid could be lying and said that because of his upbringing he wouldn't have done/taken any drugs, but in reality, he may have. If opposing counsel's objection is overruled, then we've now introduced evidence suggesting that kid's upbringing as a defense to him taking drugs?


It's very possible the college kid is lying about his father telling him that drugs are bad. And that's an important thing to note about the hearsay rule: It doesn't matter how untrustworthy a witness on the stand is when they recount the hearsay statements they heard earlier outside of court. That is a jury question of witness credibility, not a question to the court about whether the statement from earlier can be heard by the jury. How trustworty the college kid's story is, is completely immaterial to the question of whether "Drugs are bad" is hearsay. Hearsay polices the reliability OF THE STATEMENT THAT WAS MADE EARLIER; hearsay does NOT police the reliability of witness testimony made in court.

If the party isn't offering "drugs are bad" into evidence to actually show that drugs really are bad, then it isn't hearsay. In a criminal case, the college kid's defense attorney does not have to prove that "drugs are bad" to win his case, so he probably doesn't personally care whether the words stated about drugs being bad were in fact a truth or a fiction. Instead, he's offering the evidence of the college kid's upbringing to bolster the college kid's state of mind, to attack the prosecution's argument of motive: "Why would my client have done those drugs? He testified to you that he was brought up in a stiff household that never approved of drugs. If you believe my client about his upbringing, it stands to reason that he probably didn't do those drugs."

That would be a fine argument, although it obviously has its problems in so far as it is probably not a very persuasive argument to make to a jury. Just because something is an admissible argument, after all, does not guarantee that it will be a convincing one.

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Fri Jul 10, 2015 8:50 am

The statement is not being introduced to show that the shooting was an accident or a murder, but rather, just to show that the journalist did his due diligence in asking around likely as a defense against defamation. So it's more a "I'm introducing this statement as proof that I did research; it matters not what the gentleman said, but just that I did my duty as a journalist to get more details." Right?


Yup, that's pretty much it. Although I would not argue that "it matters not what the gentleman said." If it completely doesn't matter what the contents of a statement outside of court are, then why do we need to hear them? Why confuse the jury by entering the evidence at all? Well, because the stadium worker's statements do have some relevance. The journalist is trying to rebut the notion that he was given reliable information that the shooting was an accident. He's trying to argue: "Sure, some people in fact did tell me that it was an accident. Now you would think that means we can't run the murder story. But you're wrong. The only people who told me it was an accident were people who were invested in the story, so I made the professional decision not to rely on their accounts." He's offering the particulars of what the stadium worker told him, specifically to argue later that he was not negligent when he discounted them.

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Fri Jul 10, 2015 7:32 pm

I have added Chapter 5: What is NEVER Hearsay, to the post about defining hearsay.

Later on, I will make a new post that will contain explanations for all the exceptions for hearsay.

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Fri Jul 10, 2015 9:32 pm

Think of the “admissions by party opponent” rule like you think of "adversarial diversity." What matters is diversity of sides for the statement to come in under this rule – diversity of sides on a case. A prosecutor can offer the statements of the criminal defendant as a party opponent admission, but the defendant himself cannot offer evidence a co-defendant, because the co-defendant is not adversarially diverse from him. They are not on opposite sides.


I need to send this to my professor.

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby old_soul » Sat Jul 11, 2015 7:28 pm

Loving this, Tanicius. Please keep it coming. Thanks so much!

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Sun Jul 12, 2015 7:17 pm

Chapter 6: Exceptions to the Hearsay Rule

Oh thank God, we’re on this shit now. Hearsay’s pretty much over right?

Eh, kind of. Recall that there are two different kinds of exceptions too.

No I know that. You already told me. There are exemptions to hearsay, and then exceptions to hearsay.

LOL, no. When you put it like that, there are actually kind of three different kinds of exceptions to hearsay, the exemptions being the first kind.

Oh FFS. So within the “exceptions” to hearsay, there are two separate kinds?

Yeah. I mean, I could sugar-coat it, but yeah. Do my worst? Why yes if you say so!

Here is why there are two kinds of “exceptions” to the hearsay rule.

It’s about reliability and fairness. See, a long time ago, like hundreds of years ago, back when law was decided by judges in England under the authority of the King, every noble and his brother would go to court over various kinds of Shakespearian bullshit, and the judges had to decide who the fuck was saying what, truthfully. Imagine a kind of Shakespearian shitlaw practice, where you primarily practice family court but everyone is super rich and yet they have PhD’s in Shakespearian linguistics. People coming to court to bitch at each other and bite their thumbs at each other, etc.

It was discovered during the evolution of the English courts that it is actually kind of unfair to just let William show up in court and argue that his friend Tom saw everything and can vouch for William’s character. If that is true, where is Tom? Why isn’t Tom here in court himself? Why should we trust what William has to say about what Tom would say if he could actually be here?

So the courts realized that letting in just any kind of hearsay is generally a bad thing, and they invented the wonderful hearsay rule.

But then more English nobles got mad in their stupid inheritance and marriage cases. William was like, WTF Judge Trutherfudge, I said my friend TOM, goddamn it. Don’t you know TOM? He’s DEAD. I can’t call him as a witness you fucking moron.

And the judges sat there and thought, you know, there really are some situations where it makes sense to let in hearsay statements. Sometimes it just makes logical sense because it’s almost inconceivable that people in some scenarios would be able to lie about anything. So, as a matter of policy going forward, we’re just gonna let this shit in.

But the judges also decided that some forms of hearsay are more reliable than others. So, therefore, we should have a two-layered hierarchy of exceptions: Exceptions where hearsay is SO patently, OBVIOUSLY reliable that we let it in even when the person who said the hearsay can be called as a witness and is right the fuck there in court, available to be called himself. And then we also have exceptions to hearsay that aren’t quite as reliable, but we’re going to let it in because it’s just plain not fair not to let it in because of circumstances outside of the control of the person wanting to introduce that hearsay.

That should help you keep these hearsay exceptions distinct. One class of exceptions, the “unavailability immaterial” exceptions (as in, the witness’s unavailility is NOT relevant or material to the question of whether the exception should apply), exists because those exceptions are just super reliable. The other class of exceptions, “unavailability material,” exist primarily out of fairness to the proponent offering the evidence.

Part A: Hearsay Exceptions in Reverse: When the Declarant of the Statement is NOT call-able as a witness at trial.

Unlike the laundry list of reliable exceptions we’re going to get to later, these exceptions require a two-part test: (1) First, is the person who said the hearsay statement outside of court (the declarant) actually unavailable as a witness for this trial? Only then do we ask: (2) Second, is there a relevant hearsay exception that applies to them?

It’s important not to get requirements (1) and (2) mixed up here. People often think, for example, that anything a deceased witness says is de facto an exception to hearsay. That is not true. Being dead is only one half of the question. Being dead makes you unavailable, but it doesn’t guarantee an applicable exception will apply to you. And people get it wrong the other way too: They think the exceptions in requirement (2) apply to everyone. For example, a “dying declaration” is an exception under this umbrella, but it only applies if the person is actually fucking unavailable as a witness. If they give a dying declaration and then come back to court, having lived to tell about it themselves, then you can’t use the dying declaration exception on them!

Requirement 1: Is the declarant (the person who said the hearsay) actually unavailable?

There are only a few ways to be “unavailable” as a witness at trial, and they all make good sense:

- an evidentiary PRIVILEGE prohibits them from testifying about a matter (ex. A pastor might not be allowed to repeat a confession)
- the witness REFUSES to testify even though a court order fucking tells them to testify (i.e. subpoena)
- the witness claims that they can’t remember the matter (“Sorry dude, but the car crash wiped my memory. I couldn’t tell you if I ever said that, or if it’s true.”)
- A physical or mental injury/illness prohibits them from being present and testifying. (This obviously includes death.)
- the witness is missing and the party offering the hearsay statement can’t find the witness (ex. They fled the state to avoid being investigated for something)

Bear in mind, NONE of this shit applies if the party offering the evidence is the CAUSE of the person’s unavailability and they specifically intended to prevent the witness from testifying. You don’t get to kill your wife to prevent her from testifying against you at your domestic abuse trial, and then take the stand and say that your wife admitted to you in private that she made the whole fucking thing up.

MOST IMPORTANTLY: Remember that none of those things in the above list actually are the exceptions themselves. They are just the requirement we must fulfill before we can USE an unavailability exception.

Requirement Two: These are the actual kinds of exceptions you can use on an unavailable witness:

- Former sworn testimony (can be a trial, hearing or deposition), provided that a party in a criminal case had an opportunity and similar motive to cross or direct the witness, or that a party or a party’s predecessor who had an interest in the outcome had that opportunity and similar motive to cross.

(^That just means that in a criminal case, if the exact defendant on trial didn’t get a chance to cross the unavailable witness, then you can’t use in this exception. On the other hand, the bar is lower for civil trials, so if that exact party didn’t get a chance for cross but a party who was sued earlier got a chance for cross, then you’re good.)

- Statement under belief of imminent death. (The “dying declaration” exception.) As it says right there in the rule text itself, the declarant just has to BELIEVE that their death is IMMINENT. They can falsely believe their death is imminent, but obviously if they did not actually die then they must be unavailable some other way, under Requirement 1.

- Statement against interest. This is not the same thing as “Admission by a Party Opponent,” which is NEVER qualified as hearsay (unless you’re in CA, which just says it’s an exception to hearsay.) An “admission by a party opponent” does not have to be visibly against a party’s interests at the time they utter the statement. But a “statement against interest” does. It applies when the following two elements are satisfied:

(i) where someone admits something “so contrary” to his proprietary, pecuniary, or criminal liability interests that the statement would expose him to criminal or civil liability.
(ii) Everyone on the MBE forgets this part: It must be SUPPORTED BY CORROBORATING EVIDENCE.

Again, NONE of those requirements are applicable to the “admission by party opponent” exEMPtion from hearsay, where ANYTHING your party adversary says is de facto never hearsay.

- Statements of personal or family history. Not a very oft-cited exception to hearsay in most of your hypotheticals and bar exam questions. Anything about the declarant’s birth, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, SO LONG AS the unavailable witness was “so intimately associated with” that history that their information would probably be correct.

- Statement offered against party that caused the declarant’s unavailability. I’ve actually worked on a case where the prosecution cited this exception in the murder defendant I was working to defend. But they didn’t get it in, and I’ll tell you why. Here’s the deal: the defendant must not only have caused the unavailability. He must also have specifically caused the unavailability in order to stop the declarant from testifying to exactly what is being offered into evidence. What does that mean? Well, if you murder someone because you’re angry at them, you did not specifically kill them in order to prevent them from testifying to anything in court. But if you murder a snitch to keep that snitch from fucking you over in your drug racketeering case, then the prosecutors in the drug racketeering case can use the victim’s snitch testimony against you, since you specifically tried to stop that snitch from saying those statements. They could not use those statements to prove the truth of the matter asserted in court against you in your murder trial, though. They need a different exception.

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Will update later with Part B: Hearsay Exceptions where availability as a witness doesn’t matter.
Last edited by Tanicius on Mon Jul 13, 2015 8:34 am, edited 3 times in total.

redblueyellow
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Mon Jul 13, 2015 3:49 am

I know we haven't hit all the hearsay exceptions yet, but I'm just going to drop this one here in case it's covered and I don't want to forget about it.

Affidavits are sworn out of court statements by an individual.

P is in a car accident with D. P sues D for negligence. D denies. P offers to the court an affidavit signed by P's examining doctor a couple days after the accident. The doctor said that P was suffering from a recently incurred back injury. The doctor has died prior to trial.

I understand that the affidavit is hearsay; but why is it not admissible if the doctor is not available, and the affidavit is sworn? Is it solely because there no ability to cross-examine the doctor during trial? I was thinking it might come in under the present or past bodily condition exception. It doesn't fall into the unavailability section, but in this case, we have an affidavit, which hopefully would be good enough, right?

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Tanicius
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby Tanicius » Mon Jul 13, 2015 8:45 am

redblueyellow wrote:I know we haven't hit all the hearsay exceptions yet, but I'm just going to drop this one here in case it's covered and I don't want to forget about it.

Affidavits are sworn out of court statements by an individual.

P is in a car accident with D. P sues D for negligence. D denies. P offers to the court an affidavit signed by P's examining doctor a couple days after the accident. The doctor said that P was suffering from a recently incurred back injury. The doctor has died prior to trial.

I understand that the affidavit is hearsay; but why is it not admissible if the doctor is not available, and the affidavit is sworn? Is it solely because there no ability to cross-examine the doctor during trial? I was thinking it might come in under the present or past bodily condition exception. It doesn't fall into the unavailability section, but in this case, we have an affidavit, which hopefully would be good enough, right?


So the doctor's affidavit clearly falls under Requirement 1: he is unavailable as a witness because he is dead. But does it satisfy Requirement 2? You're trying to get it in under past sworn testimony. It does appear, as I understand the rules, that this would not satisfy "past testimony" because of the requirement for the defendant or the defendant's predecessor party to at least have an opportunity to cross-examine the doctor.

We will be getting into the other exceptions soon, such as a statement about physical/mental state, and another incorrect exception that some clever test takers might try -- statement of medical diagnosis. But I can spoil the fun and tell you right now that neither of those exceptions would apply, and for the same reason: they only apply to statements by the person whom the physical body or mental mind belongs to. People are thought not to lie about their own physical or mental feelings. People are especially not known to lie when they talk to their doctor. But a doctor himself is not anymore honest or trustworthy than any other random witness out there on the street, so we don't trust him to automatically tell the truth when he is talking about the bodily or mental conditions of other people.

One last exception we could try in that scenario would be a record of regularly conducted business activity. We will find in the next post that that exception similarly would probably not apply, because doctors probably don't fill out affidavits as a regular matter of course in their business, and the document was apparently prepared in anticipation of litigation; hence, it automatically fails the test of whether it has "indicia of untrustworthiness." Anyway, enough about these "availability immaterial" exceptions -- we'll get to them soon!

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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby redblueyellow » Mon Jul 13, 2015 2:23 pm

Tanicius wrote:
redblueyellow wrote:I know we haven't hit all the hearsay exceptions yet, but I'm just going to drop this one here in case it's covered and I don't want to forget about it.
But I can spoil the fun and tell you right now that neither of those exceptions would apply, and for the same reason: they only apply to statements by the person whom the physical body or mental mind belongs to.


Gah, I always forget this! Thanks for the explanation!

old_soul
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Re: Sticky Request: Tanicius's Guide for Bullshitting Essay Topics

Postby old_soul » Mon Jul 13, 2015 2:57 pm

Tanicius, pleeeeease do Property next, I feel like I lack a good conceptual understanding of conveyancing and deeds and covenants/servitudes.




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