EVIDENCE NOTES3

Chapter 10: CLASSIC HEARSAY [Fed. R. Evid. 801] Problem Set #3 I. HEARSAY: Fed. R. 801(a)-(c): a. Fed. Rule § 801(a)-(c): Definitions i. Statement: A „statement‟ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion ii. Declarant: A „declarant‟ is a person who makes a statement iii. Hearsay: „Hearsay‟ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted b. History: Sir Walter Raleigh‟s Case—wanted C to make accusations to R‟s face…instead had someone go to tower and ask C if he really did that, messenger cam back and reported that C said itR sentenced to death = problem with relying on someone‟s out of court statement means that he could have been lying, pressured, confused…do NOT know reasons or if statement had been made i. Solution: 1. Put witness under oath 2. Want jury to examine their demeanor [jury can figure out if they are lying] 3. Witness subject to cross-examination = help jury figure out c. Hearsay: excluded from evidence because it is NOT trustworthy [Fed. R. 802—Hearsay is NOT admissible except as provided by these rules or other rules prescribed by the S. Ct. pursuant to statutory authority or by Act of Congress] i. Exceptions: 1. Evidence labeled “NOT hearsay” by Fed. R. Evid. 801(d) a. Special types of prior statements of witness: i. Prior statements under oath which are inconsistent with witness‟ testimony at trial ii. Prior statement which are consistent with witness‟ testimony at trial offered to rebut a charge a recent fabrication or contrivance iii. Prior statements of identification b. Admissions of a party opponent 2. Evidence which is labeled “hearsay exception” by Fed. R. Evid. 803 (23 exceptions); 804 (5 exceptions); 807 (residual exception) ii. Evidence excluded as inadmissible hearsay if and only if: 1. Evidence meets all of hearsay requirements 2. It is NOT a special prior statement of the witness or an admission of a party opponent [“NOT hearsay”] 3. It is not within one of the many hearsay exceptions d. Definition of Hearsay: ELEMENTS: i. Out of Court = made outside of this court proceeding [extrajudicial] 1. Means NOT in the present proceedings a. Witness testified pre-trial in same case = statement made by witness is hearsay in trial because different proceeding b. Anything other than testimony given in court in present proceeding 2. E.g.—Preliminary hearing is considered out of court [proceeding independent of trial, even though part of same case] ii. Statement = oral or written assertion or non-verbal conduct intended by the declarant to be a communication to others 1. MUST be an assertion = statement that exerts a fact…capable of being true or false [statement that do NOT exert facts are NOT excludable as hearsay] a. Who said that? = NOT statement b. Open the door = NOT assertion [inference that door is closed] c. The light is green = ASSERTION 2. Can be verbal or non-verbal conduct, if nonverbal conduct is intended as an assertion a. E.g.—N tells O „I like working in the mill‟ = statement [asserting that he does like working in mill, could be lying] v. N hits thumb with hammer and yells „Ouch!‟ = NOT statement…expression of pain, NOT assertion intended to communicate to others i. If instead of „ouch‟ he grabbed his thumb = NOT assertion ii. If instead of „ouch‟ he pointed to medical chest = could be assertion b. E.g.—2 cars stopped at red light [big truck and red corvette], car driver revving engine and being rudetruck blocking light and at some point truck moved forward and car driver flew out in intersection and got hit i. Tried to assert that truck moving forward was assertion that light was green ii. Reality, truck driver NOT intended to move forward as factual assertion…getting in gear/ready to move [NOT intending to assert anything, just moving] iii. Statement was NOT assertion—based on that as inference that light was green = would be ok [did NOT intend to assert anything] c. Intentional and purposeful—primary motive is to communicate to others [E.g.—possibly diary entries] iii. By a Declarant = source of the out-of-court statement [MUST be a human being] 1. Usually declarant is different than testifying witness a. E.g.—King the drug dog is NOT a person…evidence as to his reaction is NOT hearsay = dogs are NOT people b. When you look at your watch when you hear gun shot…my watch said it was 9:30 = NOT hearsay, can testify as to what remember her watch said 2. E.g.—A sees accident and writes about it in his journal, one year later at trial A reads his notes because memory incompleteA is both testifying witness and hearsay declarant for purposes of hearsay rule…NOT testifying based on present memory, but rather to his own out-of-court statement [written notes] iv. Offered for Truth of Matter Asserted = it is offered to show that its factual content is true, need to know what it is you are offering to prove 1. E.g.—W said „The building is on fire‟ = if the issue is why did J run out of building into the street…NOT offering to prove building on fire, but reason why he ran in street a. Does NOT matter if it was true = just explaining why he ran out of building b. However, if relying on it for proving the building was on fire = HEARSAY 2. TEST: Would this statement prove the point I am trying to prove, even if the statement itself were false = if so, then it is NOT hearsay a. Relevant to case ONLY if it is true = HEARSAY b. However, if relying on it for proving the building was on fire = HEARSAY 3. RULE: What is important?? Fact the statement was made or the truth of the statement made = important to case 4. Statements NOT offered for truth of the matter asserted: a. Circumstantial evidence of state of mind—statements offered to prove either the listener‟s or declarant‟s state of mind [NOT their truth] i. Categories: 1. Effect on hearer a. E.g.—building is on fire = circumstantial evidence of hearer‟s state of mindexplains why he ran in the street i. When effect of words is what is relevant = offered to prove that statement was made and effect of statement ii. E.g.—Notice of Eviction b. Statements offered to show effect of statement on listener [E.g.—warnings] or provide listener with notice as required by law 2. State of mind of speaker [declarant‟s state of mind] a. E.g.—B stated that she was the Queen = NOT hearsay because not offered for truth of matter assertedNOT to show B was queen, offered to show B was suffering from delusions and psychosis b. E.g.—I am Pope = statement of fact [assertion] i. If want to admit it to prove that I am the Pope = HEARSAY ii. If want to admit it at competency hearing = NOT hearsay [proving something about state of mind…I am nuts] ii. Direct evidence of state of mind = words tell you directly state of mind [“I am depressed”]HEARSAY, but admissible exception to hearsay b. Impeachment—prior inconsistent statements of a testifying witness are NOT offered at trial for truth of matter asserted, but rather to show that the witness is less credible because uttered inconsistent statements i. Does NOT matter that the one uttered at trial is truthful…fact that a witness has made contradictory statements makes them less credible c. d. e. ii. E.g.—said light was green, now way it is redif question offered to prove that light was green = out of court inconsistent statement impeaches credibility of witness 1. NOT offering to prove that light was green, but offering to show that the witness has changed his story [inconsistent statement] = offered to impeach witness‟ in court testimony, it is NOT hearsay [could come in through witness or testimony of someone else] 2. Offered to prove the color of the light = HEARSAY [excluded] iii. E.g.—J testified at trial that tire rolled 10 yards away, at cross-examination she was asked whether she told her friend C prior to trial that she saw the tire roll 20 yardsJ‟s prior statement offered just because it was said [NOT truth] = less believable as witness if uttered contradictory statements Res gestae—statement NOT offered for truth, but simply as background evidence to „complete the story‟ of an incident or event…res gestae evidence helps make sense of other admitted evidence i. Exception RARELY used = background evidence 1. Rule of completeness 2. Chase has NEVER seen it in use ii. Someone offering out of court statement, but part of body that is being testified necessary for background iii. E.g.—Prosecution offered evidence of contents of telephone conversation between D and friend, C…C‟s statements may be admissible as res gestae evidence—NOT for their truth, but to complete story of telephone conversation Operative Facts [facts of independent legal significance]—statements that create legal obligations or duties….statement is NOT offered for truth of the matter asserted, but instead offered to show that the statement was made i. Statements giving rise to defamation action or those constituting offer and acceptance in K [offer has independent legal significance…offer for reward] ii. Words can have independent legal significance = bind to terms of agreement 1. Verbal Acts—words that qualify an act and give some limitations on it are NOT hearsay [E.g.—give keys and say you can drive my car (NOT gift)…see below!] 2. Independent Legal Significance—words that create legal duties or affect legal status are NOT hearsay [usually NOT asserted…E.g.—I‟ll paint your barn if you pay me $20,000] iii. E.g.—S said she would give $50 to anyone who could name capitol of Ky….L answered corrected, S‟s statement is an operative fact = offer to enter into unilateral K, if S testifies to her prior statement at trial, admissible NOT for truth, but simply because words were spoken Verbal Acts—words accompanying an act which help to explain the legal significance of that act i. Statement accompanying a donative transfer of property clarifying whether the transfer was a gift or loan [related to operative facts] ii. E.g.—victim was raped and prior to trial victim testifies that D has purple sofa and orange television AND officer can testify to truth…victim is not testifying, but the officer is: 1. Offered NOT to prove that it was D‟s apartment, but offered circumstantially to show that she was in the apartment [infer that is she was in apartment, D was the rapist] 2. NOT offered to prove the truth of the matter asserted iii. E.g.—J‟s b-day, E handed her keys and said it was hers to use in the summer…happy b-dayE‟s statement would NOT be admissible for the truth of the matter asserted, but rather as a verbal act, to indicate that the transfer of the truck as a loan and not a gift II. CASES: a. Sir Walter Raleigh‟s Case: wanted C to make accusations to Raleigh‟s face…instead had someone go to tower and ask C if he really did that, the messenger came back and reported that C said itRaleigh sentenced to death = problem with relying on someone‟s out of court statement means that he could have been lying, pressured, confused…do NOT know reasons statement had been made i. Solution: 1. Put witness under oath 2. Want jury to examine their demeanor [jury can figure out if they are lying] III. 3. Witness subject to cross-examination = help jury figure out ii. Require that witness testify live in court b. Zippo Manufacturing Co. v. Rogers Imports, Inc. (SDNY 1963): admissible because the answers are expressions of presently existing state of mind, attitude, or belief [exception to hearsay rule and admissible to prove the trust of the matter contained therein] c. Wright v. Doe D. Tatham: letters offered only to prove the competence of the testator = statement of the opinion of the writer would be inadmissibleletters were kept out as hearsay because found to go towards competency [federal rules changed and added intended] d. US v. Alosa: A charged with marijuana charges…objected of introduction of ledgers to prove conspiracy as hearsay = NOT found to be hearsay but prove drug business conducted; existence of conspiracy; and dimensions of conspiracy REVIEW: a. Hearsay Elements: i. Out of Court ii. Statement—assertion 1. Verbal 2. Non-verbal—if intended iii. Declarant iv. For Truth of Matter Asserted 1. How is it relevant? 2. Would it be relevant even if statement turns out to NOT be true? 3. Whether the fact that the statement was made or the truth of what it asserts makes it relevant? b. NOT Hearsay: i. Circumstantial Evidence of State of Mind: 1. Speaker 2. Hearer ii. Impeachment iii. Circumstantial evidence of memory/belief iv. Verbal Act/Part of Act—legal effect or significance independent of „truth‟ c. HEARSAY: i. What are you trying to prove? ii. How does this statement prove it? iii. Is that the purpose for which the statement is being offered?