Question about hearsay Forum

[kalvano]

I'm still debating on the original one, actually. The hypo says it's being offered "as proof that the time was about midnight when K entered the building."

So the statements are being offered as proof that K entered the building at midnight. So L can testify she saw K coming in, that's not hearsay. But when L testifies that she told M about K entering, that is being offered not just for the timestamp but to prove that K entered the building at midnight, which is exactly what L's out-of-court statement is saying. She is saying "Oh, M, I saw K entering the building a few minutes ago."

M is testifying, and she can say that L told her something just past midnight, but if the statement by L is "I saw K entering the building" and the reason the statement is being offered is to prove that K entered the building around midnight, then what L said matters and M can't testify to what was said, only that L said something to her.


I'm going back to thinking it's hearsay.

But it doesn't matter what statement L actually made to M. L could have said "the sky is blue" to M ten minutes after seeing K entering, and then if L testified that she saw K enter and said "the sky is blue" to M ten minutes later, and M testifies that L said "the sky is blue" just after midnight, that would serve the same purpose of timestamping. L's testimony is being offered to prove that K entered the building, and if L testifies that she made a statement to M ten minutes later, M's statement is being offered to prove what time L made that statement.

It does matter, though. The statement is being offered not to just prove time, but a specific event at a specific time. M has no way of knowing that K entered the building without L telling her that. L can't testify as to what she said to M, and M can't testify as to what L said to her. So you can timestamp that a statement was made, but it won't be proof that K entered the building, because what was said is inadmissible.

But the hypo says it's being offered to prove both time and event. And it specifically says that L said to M that K came in, and that M testified that L told her K came in shortly after midnight.

[DIH49]

It does matter, though. The statement is being offered not to just prove time, but a specific event at a specific time. M has no way of knowing that K entered the building without L telling her that. L can't testify as to what she said to M, and M can't testify as to what L said to her. So you can timestamp that a statement was made, but it won't be proof that K entered the building, because what was said is inadmissible.

But the hypo says it's being offered to prove both time and event. And it specifically says that L said to M that K came in, and that M testified that L told her K came in shortly after midnight.

The hypo says the statement is being admitted "as proof that the time was about midnight when K entered the building." It is not being admitted to prove that K entered the building, just when. L's testimony as to seeing K enter proves the event, M's testimony proves the time. You're right that M has no way of knowing that K entered the building, but that doesn't impact the analysis because M's knowledge of K's entrance isn't at issue, just M's knowledge of when L told her about it. The inferential chain is L knows "K entered the building," L doesn't know when but knows she told M right after, and M knows "L said K entered" at around midnight. Therefore, L's knowledge of K's entrance (from seeing her) and the time between K entering and L speaking to M is timestamped at "around midnight" based on M's knowledge of the time. At no point is L's statement to M that K entered used to prove that K entered because it is unnecessary: L saw K enter and can testify as to that without any hearsay difficulty. All M's testimony does is prove the time, and since that isn't what L asserted 801(c)(2) is not implicated and there is no hearsay objection.

[kalvano]

It does matter, though. The statement is being offered not to just prove time, but a specific event at a specific time. M has no way of knowing that K entered the building without L telling her that. L can't testify as to what she said to M, and M can't testify as to what L said to her. So you can timestamp that a statement was made, but it won't be proof that K entered the building, because what was said is inadmissible.

But the hypo says it's being offered to prove both time and event. And it specifically says that L said to M that K came in, and that M testified that L told her K came in shortly after midnight.

The hypo says the statement is being admitted "as proof that the time was about midnight when K entered the building." It is not being admitted to prove that K entered the building, just when. L's testimony as to seeing K enter proves the event, M's testimony proves the time. You're right that M has no way of knowing that K entered the building, but that doesn't impact the analysis because M's knowledge of K's entrance isn't at issue, just M's knowledge of when L told her about it. The inferential chain is L knows "K entered the building," L doesn't know when but knows she told M right after, and M knows "L said K entered" at around midnight. Therefore, L's knowledge of K's entrance (from seeing her) and the time between K entering and L speaking to M is timestamped at "around midnight" based on M's knowledge of the time. At no point is L's statement to M that K entered used to prove that K entered because it is unnecessary: L saw K enter and can testify as to that without any hearsay difficulty. All M's testimony does is prove the time, and since that isn't what L asserted 801(c)(2) is not implicated and there is no hearsay objection.

I will accept that argument as probably correct, but I'm still suspicious.

[spleenworship]

Okay guys, thanks a ton for the help. Since you guys seem willing let me try another one here...

As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E "not to drive it out to San Francisco."

The answer says non-hearsay so I know that much.

Legally operative language, establishes agency/scope of agency?

[spleenworship]

It does matter, though. The statement is being offered not to just prove time, but a specific event at a specific time. M has no way of knowing that K entered the building without L telling her that. L can't testify as to what she said to M, and M can't testify as to what L said to her. So you can timestamp that a statement was made, but it won't be proof that K entered the building, because what was said is inadmissible.

But the hypo says it's being offered to prove both time and event. And it specifically says that L said to M that K came in, and that M testified that L told her K came in shortly after midnight.

The hypo says the statement is being admitted "as proof that the time was about midnight when K entered the building." It is not being admitted to prove that K entered the building, just when. L's testimony as to seeing K enter proves the event, M's testimony proves the time. You're right that M has no way of knowing that K entered the building, but that doesn't impact the analysis because M's knowledge of K's entrance isn't at issue, just M's knowledge of when L told her about it. The inferential chain is L knows "K entered the building," L doesn't know when but knows she told M right after, and M knows "L said K entered" at around midnight. Therefore, L's knowledge of K's entrance (from seeing her) and the time between K entering and L speaking to M is timestamped at "around midnight" based on M's knowledge of the time. At no point is L's statement to M that K entered used to prove that K entered because it is unnecessary: L saw K enter and can testify as to that without any hearsay difficulty. All M's testimony does is prove the time, and since that isn't what L asserted 801(c)(2) is not implicated and there is no hearsay objection.

I will accept that argument as probably correct, but I'm still suspicious.

I think DIH is right. All the same I feel compelled to add: I effing hate hearsay.

[spleenworship]

This may be helpful: http://sdrv.ms/RAlt1e


I used the shit out of that on my exam.

You are my hero.

[ph14]

If a conviction of a crimen falsi is offered to impeach a witness's credibility, and it is more than 10 years old, it is still subject to the reverse 403 balancing, correct?

[spleenworship]

If a conviction of a crimen falsi is offered to impeach a witness's credibility, and it is more than 10 years old, it is still subject to the reverse 403 balancing, correct?

I don't think any crimen falsi is subject to 403. I suppose it is arguable that if it is being used against the D in a criminal trial, yes, but otherwise no.


609 (a) (2) says "MUST be admitted."


edited for explanation

[ph14]

If a conviction of a crimen falsi is offered to impeach a witness's credibility, and it is more than 10 years old, it is still subject to the reverse 403 balancing, correct?

I don't think any crimen falsi is subject to 403. I suppose if it is being used against the D in a criminal trial, yes, but otherwise no.

Citation?

[spleenworship]

If a conviction of a crimen falsi is offered to impeach a witness's credibility, and it is more than 10 years old, it is still subject to the reverse 403 balancing, correct?

I don't think any crimen falsi is subject to 403. I suppose if it is being used against the D in a criminal trial, yes, but otherwise no.

Citation?

OK. So... after looking at 609(b)(1) it appears you are correct. After 10 years you have to do the 403 balancing test. Prior to the 10 years, however, there is no 403 balancing, it simply has to come in.

[ph14]

If a conviction of a crimen falsi is offered to impeach a witness's credibility, and it is more than 10 years old, it is still subject to the reverse 403 balancing, correct?

I don't think any crimen falsi is subject to 403. I suppose if it is being used against the D in a criminal trial, yes, but otherwise no.

Citation?

OK. So... after looking at 609(b)(1) it appears you are correct. After 10 years you have to do the 403 balancing test. Prior to the 10 years, however, there is no 403 balancing, it simply has to come in.

Okay, thanks for checking. Isn't the balancing a reverse 403 though? i.e., it's only admissible if its probativeness substantially outweighs potential prejudice?

[spleenworship]

Okay, thanks for checking. Isn't the balancing a reverse 403 though? i.e., it's only admissible if its probativeness substantially outweighs potential prejudice?

You are correct sir.

[ph14]

Okay, thanks for checking. Isn't the balancing a reverse 403 though? i.e., it's only admissible if its probativeness substantially outweighs potential prejudice?

You are correct sir.

Great. Thanks for confirming.

[kalvano]

Pretty sure that short-sheet I posted has all the reverse 403's highlighted and noted. My prof was big on that.

[Gamecubesupreme]

Not sure if anyone said this yet, but the problem in the first post seems like double hearsay to me.

Both testimonies, when looked at individually, are not hearsay because they don't prove the truth of what they assert.

Only when you combine them do they do that.

However, because the two statements are not hearsay individually, they still are not hearsay when you combine them.

[target]

Okay guys, thanks a ton for the help. Since you guys seem willing let me try another one here...

As proof that E did not have permission to drive the car to Sacramento, evidence that owner F had told E "not to drive it out to San Francisco."

The answer says non-hearsay so I know that much.

Could this statement fall under the exception of "legally operative words," because it might be triggering the legal duty to keep the car within the boundaries of San Francisco? I guess that would be the argument for non-hearsay. And the counter would be, well, it's not exactly like the traditional legally operative words such as "I accept," and is more friends talking to friends without creating a legal duty.

I'm not sure though. What are your thoughts?

I just saw this now. How does your professor define legally operative words/facts? My professor went over it quickly, so I don't know what that exactly means. Is it something like going from point A -> C on the hearsay triangular?

[kalvano]

Legally Operative Verbal Act- Merely saying it, regardless of truth to the statement, legally binds the declarant and is therefore not hearsay. Times when LOVA is not hearsay- slander, marriage vows, promises, contract terms

“I accept your offer” in Contract Case
“I do” at a wedding
Assertions of Gifts

[target]

Legally Operative Verbal Act- Merely saying it, regardless of truth to the statement, legally binds the declarant and is therefore not hearsay. Times when LOVA is not hearsay- slander, marriage vows, promises, contract terms

“I accept your offer” in Contract Case
“I do” at a wedding
Assertions of Gifts

great!

[LOLyer]

Didn't read this thread, but I'm contributing anyway. This helped me:

1. Remember, "the truth of the matter asserted" pertains to *facts*. Ask yourself what fact the statement is trying to prove, then what fact it's it's being used to prove. Thinking about it like this helps conceptualize it.

2. It may seem obvious, but remember that the actual phrase is the hearsay. If the phrase was said out of court (and was not said by a party opponent or whatever the other non-hearsay thingy was) then it is hearsay. From there, determine if it falls under one of the 20-something exceptions, or the witness unavailable exceptions. Pretty much any writing (depositions, letters, affidavits, etc.) meets this of hearsay if it is offered to prove the truth of the matter asserted (maybe subject to certain rules - I already took my evidence test and can't remember).

Hope that helps!

[DocHawkeye]

I took my evidence exam yesterday and I still hate hearsay. Fuck you, evidence.

[spleenworship]

I took my evidence exam yesterday today and I still hate hearsay. Fuck you, evidence.

FTFM

[ph14]

Can someone explain to me the rules about when you can and can't use extrinsic evidence for impeachment purposes? Is this correct?: You can use extrinsic evidence for impeachment purposes for anything except: (1) proving a specific act that supports a witness's character for truthfulness/untruthfulness (608(b); and (2) to prove a collateral matter for impeachment by prior inconsistent statement (no specific rule on this but probably excluded under FRE 403). Additionally, just for impeachment by prior inconsistent statements, you have to follow the procedures in FRE 613(B): the witness must be afforded an opportunity to explain or deny it, and the party must be given an opportunity to interrogate the witness.

Thanks for any help. Also if OP is still around please consider changing the title to "Evidence Questions Thread" or something along those lines.

[kalvano]

• Extrinsic evidence
o Impeaching evidence elicited on cross of through other witnesses
o May not be used to support a collateral matter
• Collateral matter
o An issue that doesn’t necessarily deal with this case
• State v. Oswalt — a witness cannot, by the use of extrinsic evidence, be impeached by contradiction on a collateral matter using extrinsic evidence
• US v. Copelin — evidence of prior bad acts allowed for impeachment purposes (not subject to 404(b) since it’s not for propensity)
o Collateral matter — if you take away the impeaching purpose of the evidence, is there any other part of the case that this would be relevant to
• Bolstering — a witnesses credibility may not be bolstered unless / until it is attacked (can’t submit evidence relevant only for bolstering until that witness is impeached)
o Mainly applies to:
 A witnesses good character for truthful statement
 Prior consistent statements
• Prior convictions to show untruthful character — 609
o Must be for impeaching truthful character and no other purpose or 609 doesn’t apply
o 609 only applies to convictions, but nolo contendere pleas are admissible
o Federal courts let in convictions that are pending appeal
 Arrests are not convictions!
o Texas does not - convictions aren't final until appeals are exhausted
• Bias — allows for extrinsic evidence if bias is denied

[target]

Can someone explain to me the rules about when you can and can't use extrinsic evidence for impeachment purposes? Is this correct?: You can use extrinsic evidence for impeachment purposes for anything except: (1) proving a specific act that supports a witness's character for truthfulness/untruthfulness (608(b); and (2) to prove a collateral matter for impeachment by prior inconsistent statement (no specific rule on this but probably excluded under FRE 403). Additionally, just for impeachment by prior inconsistent statements, you have to follow the procedures in FRE 613(B): the witness must be afforded an opportunity to explain or deny it, and the party must be given an opportunity to interrogate the witness.

Thanks for any help. Also if OP is still around please consider changing the title to "Evidence Questions Thread" or something along those lines.

I think you are right. My prof. also says that extrinsic evidence is not allowed to prove any collateral matter whatsoever, not just collateral matter under prior inconsistent statements.

[ph14]

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?