3. The truth of the matter asserted
a. Relevancy issue
If the statement is offered for any purpose other than for its truth, it is not hearsay. Thus, the hearsay character of the statement cannot be examined until we know why the proponent is offering the evidence – i.e., its relevancy.
Deciding that a string of words is a statement does not mean it is hearsay. That depends on whether it is offered to prove what it asserts, which in turn depends on the proponent’s purpose, the speaker’s intent, and often on the broader factual context in which the statement was made.
b. Inapplicability of the rule
i) Verbal acts
A statement may be, by itself, an operative fact which gives rise to legal consequences under substantive law, e.g., words of a contract, defamation, threats, and the like. Such a statement, which is usually called a “verbal act,” is relevant, regardless of the truth of the word spoken. The fact that such words were said matters, not that they are true.
ii) Effect on hearer or reader
A statement that is offered to show its effect on the person who heard the statement is not hearsay, e.g., where the statement is offered to show only knowledge, good faith, reasonableness, emotional effect, etc.
iii) Declarant’s state of mind
A statement that is offered, as circumstantial evidence, to show the state of the mind of the declarant is not hearsay. For example, to show the intent of a party to contract negotiations; to show the state of mind of a criminal defendant; to show a witness’s bias.
Tuesday, January 17, 2012
Intro to the Federal Rules of Evidence - 51
2. Out-of-court
“[O]ther than one made by the declarant while testifying at the trial or hearing.”
The following statements will be deemed “out of court”
a. Statements by non-witness
A witness’s delivery of a third person’s statement constitutes hearsay.
b. Prior statements by witness
An out-of-court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.
A witness’ prior statement made in a deposition or in an earlier trial, or even when spoken in the judge’s chambers during the present trial, are all out of court, and so will constitute hearsay, unless FRE 801(d)(1) exception is applied.
EXAMPLE:
Plaintiff: Ms. Jones, what did you say to your son after you looked up?
Witness: I told him that I saw the green car go through the stop sign.
Defense: Objection, your honor. Hearsay.
Court: Objection sustained.
“[O]ther than one made by the declarant while testifying at the trial or hearing.”
The following statements will be deemed “out of court”
a. Statements by non-witness
A witness’s delivery of a third person’s statement constitutes hearsay.
b. Prior statements by witness
An out-of-court statement does not lose its hearsay character simply because the declarant later becomes a witness at trial and testifies about the statement.
A witness’ prior statement made in a deposition or in an earlier trial, or even when spoken in the judge’s chambers during the present trial, are all out of court, and so will constitute hearsay, unless FRE 801(d)(1) exception is applied.
EXAMPLE:
Plaintiff: Ms. Jones, what did you say to your son after you looked up?
Witness: I told him that I saw the green car go through the stop sign.
Defense: Objection, your honor. Hearsay.
Court: Objection sustained.
Intro to the Federal Rules of Evidence - 50
1. Statement
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).
It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).
An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.
EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.
EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.
b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.
Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.
i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.
The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.
c. By person
The hearsay rule does not apply to devices or animals.
a. Oral or written assertion
The term of assertion means a “forceful or positive declaration.” U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky. 1980).
It is scarcely doubted that an assertion made in words is intended by the declarant to be an assertion. Hence, verbal assertions readily fall into the category of statement (ACN).
An oral assertion is made when a witness testifies that somebody said “…”. Any written document that is offered in evidence constitutes a statement for hearsay purposes.
EXAMPLE
Q: What did the crossing guard say to you immediately after the accident?
OPPOSING PARTY: Hearsay, Your honor.
JUDGE: Sustained.
Q: May I make an offer of proof?
JUDGE: Certainly. Proceed.
Q: If the witness were allowed to testify, he would state that the crossing guard made the following statement to him: “I saw the fire truck and heard the siren. All of the traffic stopped except for the red care in the left lane, which just ran right into the back of the blue car without even slowing down.”
JUDGE: Very well. The ruling stands. Ask another question.
EXAMPLE
Q: What was the content of the radio bulletin from the dispatcher?
OPPOSING PARTY: Objection, hearsay.
JUDGE: Sustained.
b. Non-verbal conduct intended as an assertion
Assertive conduct is treated as if it were a statement, so that it can be hearsay.
Any conduct might have assertive intent, so it might be a statement in which case it would be hearsay if offered to whatever the actor sought to express. In this setting, the burden is on the objecting party to prove that the actor had the requisite intent.
i) Nonassertive conduct
Nonassertive conduct is not conduct the declarant did not intend as an assertion but which is being offered as an assertion. Evidence of nonassertive conduct is not hearsay.
The rationale is that the likelihood of fabrication is less with nonassertive conduct than with assertive or verbal conduct.
c. By person
The hearsay rule does not apply to devices or animals.
Intro to the Federal Rules of Evidence - 49
B. DEFINITION
“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. (FRE 801(c)).
Hearsay is generally secondhand information that is heard from another. Whenever a witness begins to respond on the stand by saying, “I was told …,” “I heard it said …,” “Joan told me that …,” or “She said …,” a red flag should go up to warn a potential hearsay issue. (Laws of Evidence, p.296)
EXAMPLE
Plaintiff: What were you told when you opened the door?
Defense: Objection, hearsay.
Court: Sustained.
Plaintiff: I’ll rephrase. What did you hear when you opened the door?
Witness: I heard Joe tell Mary that …
Defense: Objection, move to strike. 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. (FRE 801(c)).
Hearsay is generally secondhand information that is heard from another. Whenever a witness begins to respond on the stand by saying, “I was told …,” “I heard it said …,” “Joan told me that …,” or “She said …,” a red flag should go up to warn a potential hearsay issue. (Laws of Evidence, p.296)
EXAMPLE
Plaintiff: What were you told when you opened the door?
Defense: Objection, hearsay.
Court: Sustained.
Plaintiff: I’ll rephrase. What did you hear when you opened the door?
Witness: I heard Joe tell Mary that …
Defense: Objection, move to strike. Hearsay.
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