I. the hearsay rule of exclusion
A. Elements of Basic Hearsay ……….. 73-79
i. Fed. R. Evid. 801 (a)-(c)
a “Statement” includes:
(1) An oral or written assertion. OR
(2) Conduct (non-verbal) of a person, if that person intended it to be an assertion.
Note: Statement – all must be assertions! Any time you have a writing you have potential hearsay problems. Anything that is said in the course of a trial is not hearsay.
3. Non-verbal conduct – if it is a substitute for speech.
b “Declarant” – a person who makes a statement
c “Hearsay” – A statement, made by the Declarant while not testifying, offered in evidence to prove that what the statement asserts is true.
ii. Leake v. Hagert: The hearsay rule prohibits use of a person’s assertion as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make.
a If statement [truth of the matter asserted] is offered to prove the truth of a matter at issue in the case … = hearsay!
b Even when the declarant makes a statement in court repeating what he said out of court … = hearsay.
c Legal reasons for excluding hearsay:
(1) Statements tend to harden … cross-examination after the fact would be too late. Statements are untested by cross-examination
(2) Statement was not made under oath.
d 4 Policy Reasons why you want to Cross-examine:
(1) Memory – test the time difference between Time of Observation and Time of Statement.
(2) Perception – checking for accuracy of statements – did declarant actually see what he says they saw? what were they smoking?
(3) Sincerity – when was the last time you had a fight with your dad? (taillight example)
(4) Narrative – How did the narrative go between the Declarant and the Witness? Was the declarant misheard?
iii. Craig v. Iowa Home Mutual Casualty Co. – (P) tried to sue the Insurance Company of the person that hit their car. The insured gave a check to the insurance company, but it was returned for insufficient funds. The insured then went to the office and s
The Doctor’s statement was NOT adduced to the fact that the sight of the burn might become cancerous. TOMA Check your shoulder, you might get cancer. Why was it offered? To show that she had a fear of getting cancer – Not Hearsay.
b NOTE: If TOMA of to show she was going to get cancer then = Hearsay. The statement was made to the assertion that a mental neurosis might result, not that cancer would…
c if P was saying she had cancerphobia for dermo telling her that she was taking an excess of vitamin C, not reasonable enough to show P suffers from cancerphobia.
d letting statement in b/c it was said to her
v. In evaluating the testimony of a witness, Perception, Memory, and Narration are all factors that are to be considered. For the witness to do his best with respect to the factors, there are three conditions under which witnesses will ideally be required to testify.