hearsay Forum

[jayman]

Doing CALI lessons on Hearsay and it's mostly going completely over my head. I though I had a good grasp but apparently determining the threshold question of whether or not something is hearsay is escaping me. Any suggestions/helpful hints out there??

[vamedic03]

Doing CALI lessons on Hearsay and it's mostly going completely over my head. I though I had a good grasp but apparently determining the threshold question of whether or not something is hearsay is escaping me. Any suggestions/helpful hints out there??

1. Definition of Hearsay
a. Definition – a statement/assertion made by a declarant outside of the present hearing or trial that is being offered for the truth of the matter asserted
i. Three Requirements:
1. Must be a statement – an oral or written assertion, or non-verbal conduct, of a person intended by the person to convey meaning
a. Key elements – communicative intent and the possibility that the speaker is being manipulative or lying
2. Statement is made outside of the current hearing or trial
a. Person making the statement is the declarant
i. Person must be human [bloodhound tracking a scent isn’t a person; radar gun isn’t a person]
ii. Lab report – has both hearsay and non-hearsay elements (the portions of the computer report that required human input are hearsay)
b. Questions are generally not considered statements unless they seem to be attempting to communicate some information
c. Actions or statements that have independent legal meaning are excluded from hearsay rule
i. Oral contract ≠ statement
3. The statement is offered in the present trial or hearing for the proof of the matter asserted
a. Being offered for the effect on the hearer or for bolstering testimony is not being offered for proof of the matter asserted

[jayman]

thanks for the quick response.

quick question. things that are always not hearsay include: verbal acts, prior inconsistent statements to impeach, effect of declarant's words on listener/reader, and circumstantial evidence of declarant's state of mind (harder one to figure out)?

[cardinals1989]

You have to distinguish between three categories of hearsay "exceptions":

1) Not hearsay-This can include actions that have no expressive intent or meaning. It can also include statements that are not being offered in evidence for the truth of the matter asserted but for some other purpose, including circumstantial evidence as to the state of mind of the declarant, subsequent actions, effect on the listener, etc.

2) Exemption to the Hearsay Rule-For example, 801d(2), Admission by party opponent. These are hearsay normally, but are exempted from the hearsay rule.

3) Exception to the Hearsay Rule-Look at rule 803, 804, etc. These are marked clearly in the FRE.

ETA: For full disclosure, I am a 0L. However, I have taken Mock Trial for four years under both law students who have taken Evidence and actual lawyers/professors. I have also taken separate classes as well.

[Renzo]

As a basic, fundamental starting point, ask yourself two questions:

1) Is the out-of-court statement being offered to prove the thing it says (is it offered for it's truth-value), or is it offered to prove something else? If it's not offered for truth-value, it's not hearsay.

2) If by that test it is hearsay, is it on the list of things pronounced to be "not hearsay" by 801(d)? If it is, it's definitional not hearsay; but if not it's hearsay and you need to analyze it under the hearsay exceptions.

[bjsesq]

thanks for the quick response.

quick question. things that are always not hearsay include: verbal acts, prior inconsistent statements to impeach, effect of declarant's words on listener/reader, and circumstantial evidence of declarant's state of mind (harder one to figure out)?

Verbal acts? Not sure what you mean by this. I'll do the simplest example of hearsay to try and make this clear.


Let's say you are at trial, and you want to show that this one witness is nuts. Ignoring all other objections, let's say you attempt to admit a statement that she made. The statement is, "I'm Napoleon, motherfucker!" Opposing counsel objects on hearsay. It's only hearsay in this case if you are trying to prove the truth of what she asserted, i.e. that she is Napoleon. She clearly isn't here. It's not hearsay because you are using it to show she is nuts, and it undermines her credibility.

Now, some sorts of statements are presumed to not have an assertive value to them. For instance, questions: questions don't usually have a "truth value" per se, they are thus usuallly not hearsay (although this isn't always true.) If that helps, let me know what else you want to know.

[Renzo]

thanks for the quick response.

quick question. things that are always not hearsay include: verbal acts, prior inconsistent statements to impeach, effect of declarant's words on listener/reader, and circumstantial evidence of declarant's state of mind (harder one to figure out)?

Verbal acts? Not sure what you mean by this.

Verbal acts are thinks like a person saying "I accept your offer." These are out of court statements, but they're relevant because of the legal effect the words have, not the truth of the message.

[bjsesq]

thanks for the quick response.

quick question. things that are always not hearsay include: verbal acts, prior inconsistent statements to impeach, effect of declarant's words on listener/reader, and circumstantial evidence of declarant's state of mind (harder one to figure out)?

Verbal acts? Not sure what you mean by this.

Verbal acts are thinks like a person saying "I accept your offer." These are out of court statements, but they're relevant because of the legal effect the words have, not the truth of the message.

coolthxholmes