EVIDENCE PROBLEMS3

Problems #3: HEARSAY [Fed. R. Evid. 801-806] 1. 10-1: B charged with stealing then selling dogs for profit…SA owned dog named Fido that was one of animals allegedly stolen by B…Which evidence is Hearsay? a. SA testified that when she saw Fido in B‘s yard he wagged his tail upon seeing her: NO = NOT a declarantNOT hearsay b. SA testified that she said to B, while observing Fido, ―B, that‘s my dog!‖: Witness and declarantHEARSAY…could rephrase question and say when you saw the dog, what was your reaction? Rather than what did you say to Britt…objection, hearsay! c. SA told police that dog in B‘s yard was Fido: HEARSAY = out of court statement offered to prove the truth of the matter asserted d. When officer asked SA if she was sure it was Fido, SA scratched her head, looked quizzical, and then nodded yes: HEARSAY = even though non-verbal when nods her head yes [asserted]…scratching head is NOT assertion e. SA testified that dog saw in B‘s yard as her own Fido: NOT hearsay = NOT out of court statement 10-2: Civil assault and battery between B and S…B calls friend, D, to witness stand = D says B spoke with me later that day and said S punched him: HEARSAY, out-of-court statement being offered to prove the truth of the matter asserted [fact that Stan sucker-punched Bernard gives rise to charge] 10-3: BJ, basketball player, limped to sideline, grimacing in pain while clutching his knee: NOT hearsay = non-verbal act, response to painNOT assertive, in absence of evidence that is the way BJ communicates with his coach [NOT intending to assert anything, limping because it hurts to walk normally] 10-4: Issue whether J was mentally ill, evidence offered showing J‘s doctor admitted J to psychiatric hospital for observation: Trying to prove that he has psychiatric illness, doctor‘s act of admitting the patient is NOT an assertion of fact [draw inference that mentally ill]…generally act of admitting patient to hospital is NOT assertion of fact, because NOT intended [infer the illness…intent of doctor is to give the patient they need]NOT hearsay 10-5: Issue D‘s sanity, D‘s wife testified he would bark at moon and live in doghouse: Circumstantial evidence of state of mind + probably is NOT a statement [barking at the moon] = NOT truth of the matter asserted [barking] = circumstantial to show lack of sanityNOT hearsay 10-6: Decedent suffered fatal injuries in accident, issue is personal injury action concerning time of death…decedent‘s estate calls EMT to testify that he saw doctor pull sheet over decedent‘s head after exam: Doctor is covering out of respect for patient; conduct that is NOT intending to assert anythingNOT hearsay 10-7: N agreed to sell car to V pending inspection and parties signed written K, before executed N died…inspection revealed defects and V refused to purchase…N ‗s estate sued for specific performance, V‘s intends to testify about terms of K, including inspection clause: NOT hearsay = contracts are never hearsay, create rights and responsibilities [NOT inadmissible because it is hearsay—operative facts] 10-8: Issue was competence of T [T left money to estranged wife in earlier will and to pets in later]…evidence included letters written to T from business men and women seeking to do business with him: Draw inference that they think he is competent = if they believed he was competent, draw inference that he was competent…circumstantial evidence of state of mind of speaker and infer state of mind of speaker = NOT hearsay 10-9: R sues A for defamation, R contends that A said R was corrupt during a speech…A‘s attorney asks here what she said in speech: NOT hearsay = NOT offered to prove TOMA…fact of independent legal significance [defamatory statement like a K has independent legal significance] 10-10: Issue whether R and K legally married… a. J testifies that at wedding hear both R and K say I do in response to ‗do you take this person to be your lawfully wedded spouse?‘: NOT hearsay = act has legal effect of binding in matrimony b. J testifies that 2 hours after the wedding, R and K told me they both said I do during wedding ceremony: HEARSAY c. J testifies that saw wedding rehearsal, they were nervous but said I do and it was one of few times before divorce did not see them fighting: HEARSAY = does NOT seem to be legally relevant…because rehearsal does NOT have legally binding effect of getting married [E.g.—If already married in civil ceremony, then later say I do in religious ceremony, it does NOT have legally binding effect] 10-11: Issue whether J can talk, J offers statement made day before trial to mother, ‗I can cry‘: NOT hearsay…issue was whether or not he could talkoffered to prove that he could speak [critical], NOT truth of what was said 10-12: Issue whether J can cry, J offers statement made day before trial to mother, ‗I can cry‘: HEARSAY = offered to prove that he could cry 10-13: S [age 5] claims sexually molested by R, neighbor of uncle H…H took care of S regularly and S could not remember which one of H‘s neighbors molested her, but remember contents of house where molestation occurred…S made statement to mother and police about various articles in house…prosecution offers statements at trial: a. If limited to identity of who person was and describing inside of house, trying to prove whom molested her, what is n the house is relevant to show that the child was in the house i. Limit to issue of whether child was in the house = then would NOT be hearsay, NOT offered for TOMA 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. ii. If policeman gives testimony that house has doll in it…then child said she was in house that contained the doll = circumstantial evidence of memory b. Here, child asserting that she was molested in this house = HEARSAY c. NON-hearsay = should have said child was in house with doll…but must be tied to D‘s house with independent evidence [offer circumstantial evidence or memory or belief that she was in the house]when tie in the fact that she was molested in the house, it is the key fact that makes it HEARSAY 14. 10-14: Bank officer, K, sued for converting funds from former employer, CB…B testifies for CB and on cross-examination, ‗Contrary to statement on direct examination that K had meeting about missing funds didn‘t you say last week that K did NOT have meeting about funds?‘ = NOT hearsay because impeachmentdoes NOT matter whether inconsistent statement was true or not, ONLY that it was made and the witness has changed their story [that fact = impeachment of witness‘ credibility] 15. 10-15: J puts skates outside apartment…when returned skates were gone and T said ‗B stopped by and took skates‘…J sued B for conversion, J called to testify on her behalf but when J‘s counsel asked T who took them he stated A took them a. NOT hearsay = credibility of witness, impeachment b. NOT admissible for TOMA, ONLY impeachment c. Can NOT offer statement to prove the truth of the matter that it asserts, if NO other evidence to prove who stole the skates the jury would NOT know who stole them… i. Fed. Rules/CL rules = do NOT allow you to offer as proof of truth of matter asserted ii. Cal. = allowed to offer as proof!! Review: #10-16: Is it really hearsay?? [assume statements made out of court] 1. To show bird named C is owned by S, Cs‘ statement when she is in same room with S, ―That‘s my S! Caw! That‘s my S!‖: NOT hearsay because declarant was a bird [declarant MUST be a person] 2. Issue whether M liked L, fact that M hugged L upon seeing him: NOT hearsay, probably did NOT intend the hug to be a non-verbal assertion = most of time when you give hug, just giving a hug…NOT intending to assert that fact to anyone [if doesn‘t appear to be intended as assertion = NOT hearsay] 3. Issue whether M liked L, fact that M chose L last for her team in moot court: NOT hearsay, when she chose him last NOT statement, NOT intended as non-verbal assertion [could also be argued under relevancy – offered as truth of matter asserted…when chosen is NOT relevant to if she liked him] 4. Issue whether M liked L, M‘s statement, ‗I like Lee‘: HEARSAY 5. Question of who robbed Laundromat at gunpoint, witness P‘s deposition statement that ―L robbed Laundromat‖: HEARSAY…possible that could come in 6. Prove that T and S are married, testimony by R that they said ‗I do‘ when asked by priest whether they would take each other as lawfully wedded H and W: NOT hearsay = verbal contract 7. To prove C stabbed her H, fact that C seen fleeing their home 5 minutes before police arrived to investigate loud noises: NOT hearsay = flight allows you to infer guilt, but NOT to believe that she intended to assert she was guilty 8. Issue whether B died as result of accident, B‘s statement immediately after accident, ―Jeep just hit and knocked me over‖: HEARSAY = issue is whether he died as result of accident…he dies suddenly and linked causally…statement that there was accident, it was hearsay [could be admissible as dying declaration] a. Offered to prove that he died as a result of accident = HEARSAY b. If issue was if he was killed during accident, fact that he spoke was what matters NOT what he said = NOT hearsay 9. Show J committed murder, fact that she attempted to poison prospective witness after charged with crime: NOT hearsay = fact that she poisoned witness was relevant, but poisoning witness was NOT intended to convey she committed the crime 10. To prove P died of accidental causes, autopsy report indicating such: HEARSAY = autopsy report is a verbal statement and says that he died of accident causes, truth of statement is key 11. Prove S is P‘s father, testimony that S often referred to P as ‗my son‘: HEARSAY = offered to prove that he is the son 12. Issue whether R struck L, R‘s statement, ‗I boxed his ears but good‘: HEARSAY = from statement, colloquial way of admitting that stuck someone 13. To show LL committed robbery, his written confession: HEARSAY = however, almost always admissible if begin offered by prosecution 14. To show B went to store with A, the overheard question, ‗Why did B go to store with A?‘: HEARSAY = question can contain an assertion of fact that the two went to the store together and being offered to prove [question that is JUST interrogatory, does NOT contain an assertion of fact = NOT hearsay]…if offered to prove that something did occur [HEARSAY] 15. To show that road turns sharply, O‘s statement, ―Watch out, that road turns sharply!‖: HEARSAY = to prove road turns sharply 16. To show driver of car was negligent in running of the road at the turn, O‘s statement ―Watch out, that road turns sharply!‖: NOT hearsay = statement offered to prove that the driver had notice, if he knew or should have known…NOT offered to prove that the road turns, but that the driver was negligent [prove notice/awareness = Effect on Hearer] 17. To impeach G, witness in case, G is asked on cross-examination, ‗Didn‘t you say at the time of the incident that you were NOT at home that night, unlike your testimony today?‘: NOT hearsay = impeachment…however, you should break up into 2 questions 18. Issue of whether new model of Cruiser was safe, a Consumer Reports article declaring it to be ‗safe‘: HEARSAY = trying to prove car is safe and report offered to prove TOMA 19. Issue of whether accused committed burglary, evidence that D twice attempted to escape jurisdiction after being arrested for crime: NOT hearsay = conduct is NOT intended to assert the TOMA [evidence of guilt] 20. Question of whether Jaguar was gift or loan from RC, RC‘s statement ‗here are keys to Jag; you can use it for a year as a bday present‘: NOT hearsay = verbal acts…words that qualify an act and give verbal assertion of what act means [verbal part of an act must be contemporaneous, NOT a later statement] 21. Issue of whether newspaper article defamed the mayor, statement by reporter day after article published that ‗I said some notso-nice things about Mayor in that article‘: HEARSAY = backward looking statement, article would NOT be hearsay #10-17: Is it really hearsay II? [assume statements out of court] 1. To show witness, D, is telling truth, D testifies on direct, ‗I said in my deposition last week, consistent with my testimony here today, that the blue car ran the red light‘: HEARSAY = witness repeating a prior out of court statement, does NOT impeach…no independent significance [classical hearsay under hearsay definition] 2. Issue of who started fight between C and SK, pre-fight statement by J to SK, ―Hey, SK, C is gunning for you‖: a. If SK‘s attorney and want to show that C started the fight…tends to prove that C started the fight = someone who knew that C wanted to get SK = HEARSAY, because offered to prove the TOMA b. If SK‘s defense is self-defense, would be relevant because goes to state of mind = NOT hearsay…SK‘s response is more reasonable [words can be shown circumstantially to have effect on person who heard themfear/apprehension of what C is planning to do] 3. On issue of whether there was breach of K, L testified at trial that ‗the K stated I was to deliver the pork by the 16 th‘: NOT hearsay = term of K is NOT hearsay…terms of K created independent legal significance [operative acts/verbal acts] 4. To show L and C were friends, fact that they talked to each other at a party for several hours: NOT hearsay = non-verbal conduct and it is unlikely that the fact they had a conversation is intended as an assertion 5. Issue whether A committed the crime, her pre—trial claim, ‗I did not commit this crime‘: HEARSAY = truth of the statement is what proves the fact that is at issue 6. Issue whether J conspired to commit crime, J signaled ‗thumbs up‘ when asked to join the conspiracy: NOT hearsay = asserted conduct, out of court…signal has another effect apart from the truthful assertion [agree to conspiracy you are no a co-conspiratoracts of thumbs up is act of joining conspiracy]…act has independent legal significance 7. Issue whether J agreed to commit crime, J remained silent when asked by friend, R, ‗you are not going to chicken out, are you?‘: HEARSAY = silence is NOT usually viewed as an affirmative act…silence in face of question that a reasonable person would deny, silence would be taken as an adoption of admission [implies that he had already agreed to a job]if offered for that purpose it is hearsay 8. Issue whether S paid parking ticket, S possessed a violator‘s ‗receipt of payment‘ issued by DMV: HEARSAY = only relevant if you look at the assertion on it…receipt is a statement of payment [assertion that payment has been made], fact that you use machine as your medium does NOT make it a statement [verbal assertion of paid in full] 9. To show S paid parking ticket, photograph of S paying money at cashier‘s window of DMV: NOT hearsay = photograph is NOT intended as assertion [photograph is NOT asserting anything, it is ONLY evidence that the ticket was paid]records non-assertive conduct that shows payment 10. Question of whether S died in helicopter crash, S‘s statement made immediately after the crash, ‗hey, I‘m still alive!‘: NOT hearsay = truth of what she said is NOT relevant…only that she spoke and was aliveany utterance will show that she was alive after the accident 11. Issue of whether D attempted to bribe government official T, evidence that D attempted to kill T before he could testify against D at trial: NOT hearsay = someone will testify that D attempted to kill Ted…fact that he attempted to kill Ted is nonassertive, non-verbal conductinfer guilt, but NOT intended as an assertion of guilt 12. Issue of whether transfer of J‘s Jaguar to K was gift or loan, statement by J one hour after transferred and offered at trial by J, ‗that was a loan I made to K‘: HEARSAY = not the verbal part of an act because it is separated from the act…if repeated out of court assertion made after transferring keys [testifying witness is declarant] 13. Question of whether A the defendant acted in self-defense in killing V, her statement made prior to fight in question and offered by her at trial, ‗I am scared of V‘: HEARSAY = direct evidence of her state of mind [later exception…] 14. Issue whether cab was safe, fact that cab driver drove away in cab after visual inspection of it: NOT hearsay = non-verbal non-assertive conduct…can infer from inspecting the car and driving away that the car was safe [just because can draw an inference, does NOT mean that the car is safe] 15. Issue whether defendant, S, is guilty of crime charged, evidence that S yelled ‗over here!‘ and set a fire at the scene of a gang fight to intentionally direct suspicion to him and away from the youngest members of the gang, E and W: a. HEARSAY = ambiguous conduct…start with assumption that S is attempting to communicate to police that he, NOT E and W, was involved in the crime [ambiguous]assuming that he is saying I‘m the one responsible by saying ‗Over here!‘ b. NOT hearsay = when he says over here it is NOT an assertion but only intended as a distraction 16. Issue whether O likes H, O‘s prior statement, ‗H has no faults‘: NOT hearsay = circumstantial evidence of the state of mind of the speaker…O said H had no faults which shows his high regard for H and from that you can infer that O likes H [infer O‘s state of mind] 17. Issue whether O likes H, O‘s statement ‗I like H very much‘: HEARSAY = out of court statement offered to prove the TOMA 18. Issue of whether O left all his money to H, O‘s statement, ‗I like H very much‘: a. HEARSAY = because O liked H, he had a motive to leave her money [trying to prove]when he says this it will be offered to prove TOMA b. NOT hearsay = could be offered to prove that H in the will is Harriet….could be offered to show the identity of the recipient [offered to show that he knows H]if ambiguity of who H is, can identify H, regardless of whether he likes or dislikes her [doesn‘t rely on the truth of the assertion] 19. Issue whether S had been poisoned, prior statement, ‗I‘ve been poisoned!‘ offered by her at trial: HEARSAY = only proves that she has been poisoned if true 20. Issue whether S acted reasonably in drinking a glass of liquid that contained poison, statement by friend just before she drank liquid, ‗Watch out for that glass of pink liquid, S, it looks like poison‘: NOT hearsay = issue is whether she was acting reasonably when she drank it…circumstantial evidence of state of mind of hearer [person who hears warning and drinks anyway may NOT be reasonable]doesn‘t matter whether it looked like poison or not, just whether was reasonable in drinking it 21. Issue of whether his leg hurt, A‘s statement ‗My leg is hurting me‘: HEARSAY = proves his leg is hurt because he says his leg is hurt 22. Issue of who shot the sheriff, E‘s statement offered by him ‗I did not shoot the sheriff‘: HEARSAY = relevant to show who shot the sheriff is that it narrows the field, but ONLY offered to show that he did NOT shoot the sheriff [do NOT confuse with probative value] 23. Issue whether C went to store on afternoon in question, C‘s statement made that morning, ‗I‘m going to go to the store this afternoon to get some shopping done‘: HEARSAY = statement is relevant that it was her intent that morning to go to the store…ONLY know intent by what she saidrelying on the statement for the TOMA [state of mind is that she intends to do something] 24. Issue whether C went to store that afternoon, her H‘s statement, made that morning, ‗C told me she‘s going to go to the store this afternoon‘: HEARSAY = his out of court statement which includes her out of court statement [double hearsay] 25. To show that the lamp belonged to R and not to her boyfriend J, J‘s statement ‗This lamp belongs to R‘: HEARSAY = proves the lamp is hers by only proving the TOMA 26. To further show lamp belonged to R and not J, J‘s statement, ‗This is one ugly lamp‘: NOT hearsay = infer that if he said the lamp was ugly, he believes the lamp was ugly and can infer that he would NOT own the lampNOT being offered to prove the TOMA…circumstantial evidence to prove the state of the mind of the speaker 27. Issue of how L felt about B, fact that L shook hands with B upon seeing him: NOT hearsay = non-assertive conduct 28. Show that B committed crime of mayhem, his unsuccessful attempt to bribe prospective witness after his arrest: NOT hearsay = non-assertive conduct, did NOT intend to make an assertion when he attempted to bribe the witness 29. To show that P is NOT a thief, fact that he was named chief financial officer by president of company: NOT hearsay = if using it to show that naming someone CFO is not a thiefmust infer that this indicates that someone is trustworthy, however naming someone as CFO is NON-assertive conduct