I. THE HEARSAY RULE OF EXCLUSION (rule 802 provides that hearsay is not admissible except as provided by these rules)
A. 801a-c: Definitions of Hearsay-anything that is oral and out of court is generally hearsay if the declarant is not on the stand available for cross, it is not trust worthy and this is why we have rules against allowing such evidence in. Concerns revolve around our inability to probe the declarant’s perception, memory, sincerity and narration.
1. 801 a: Statement: a statement is 1. an oral or written assertion OR 2. non-verbal conduct of a person, if it is intended by the person as an assertion.
a. A substitute for speech, or written word that is intended by the person as an assertion.
Ex: Giving someone the bird is a nonverbal conduct that is intended.
Ex: Pointing out someone in a line-up is non-verbal
b. Conduct, is problematic. The critical distinction under the FRE is between assertive and non-assertive conduct.
c. Non-assertive conduct: (implied assertions):
a. Wright v. Tatham: A beneficiary offered letters to prove competency of testator. The letters that merely discussed every day affairs. If the letters had called him a “competent testator” they would have been hearsay. (all the letter writers were dead at the time of trial) The letters indicated the writers believed he was mentally competent. The court held this was hearsay, but the federal rules feel differently.
b. Federal Rules View: advisory committee is of the view that these dangers of narration, sincerity, etc. are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.
i. If a person does not intend to make an assertion, insincerity issues are significantly reduced or eliminated.
2. 801 b: Declarant: is a person who makes a statement. (remember Peter’s statement to Jill, he is the declarant, she is the witness who gives the statement. Also remember that Peter can be the declarant and the witness) One person is making a statement to someone else, and that someone else repeats the statement in court.
a. This definition makes clear that the hearsay rule does not apply to devices such as radar, or to tracking dogs.
3. 801 c: Hearsay: 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.
a. Look to where the statement is made. If made in court, then the statement is probably not hearsay, if made outside of court and repeated then probably a candidate for hearsay.
i. Out of court: other than one made by the declarant while testifying at the trial or hearing.
b. Why the statement was offered: Truth of the matter asserted: have to look at why the statement was made! If it was made to prove the truth of the matter asserted, then it is hearsay and generally not admissible. A non hearsay offering never cares about the truth of the statement.
i. If the relevance is just to show the statement was made rather than the truth of the assertion contained in the statement, the statement is not hearsay.
ii. If the statement is offered for any other purpose than its truth, it is not hearsay. SO, we have to know why the statement is being offered, its relevancy. (it is the offering party that decides this) (AND rule 401, and 403 may keep it out too!).
Ex: if statement “I am very rich” used to prove rich, then hearsay, to prove he is a jerk, this is going away from the truth and is not hearsay.
Ex: Statement: “I am the Pope” made by John Doe oral statement out of court. Offering is that you are going to show Doe uttered it and the statement was false. We are not offering to show that he is the pope. Not hearsay. If offering to show he is the pope, then it is hearsay and is inadmissible.
*General Rule: If trying to prove what he said was false then it is not hearsay. A non hearsay offering does not care about the truth of the statement.
Ex: Statement: “I want to cancel my policy” if offered to show the policy was canceled, or that he uttered the statement, then not hearsay, BUT if offered to show the declarant wanted the policy canceled, then hearsay. The first is not because we are not showing his intention to cancel.
*General Rule: if only offered to show it was uttered, then not hearsay.
c. A witness can also be the declarant. If a witness is testifying as to what he saw, for example in Leake the son testified to seeing the light out this is not hearsay, because he is not testifying as to the truth of something said outside of court. However, if the son was testifying to what he told the adjuster outside of court (“I told Gross…..), this is hearsay because it is offered to prove the truth of his statement to the adjuster.
i. It is important to note that
nd. (not by a third party)
i. Federal Rules will not exclude. Offered to show pecuniary loss to her, so not offered to show how she felt.
ii. If evidence is offered to impeach a witness it is generally not hearsay. You are showing this person does not need to be believed. Impeaching is only offered to show the statement was made, not prove it.
h. Verbal Acts: statements that constitute verbal acts or operative acts are not hearsay because they are not offered for the truth.
a. The uttering of certain words has independent legal significance under the substantive law.
b. Ex: words of a contract, slander, threats.
c. We only care if these words are said, not if they are true.
i. Verbal Parts of Acts
a. statements offered in evidence only to show that the statements were made and to explain an otherwise ambiguous act.
b. Words of donative intent accompanying the transfer of something. (because donative intent is an element of a gift)
a. 801d1A: Prior Inconsistent Statements: A statement is NOT hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjurty at a trial, hearing, or other proceeding, or in a deposition.
i. Really offered to show the statement was inconsistent, not the truth of the matter asserted.
ii. You might then want to invoke a rule 105 limiting instruction
b. 801d1b: consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
i. Normally is hearsay, however this is an exception. It is showing the truth of the matter asserted, however here we are rebutting a lie or something different.
801d1c: ….one of identification of a person made afte