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Evidence
South Texas College of Law Houston
Crump, Susan Waite

EVIDENCE
 
THE HEARSAY RULE OF EXCLUSION
A.      ELEMENTS OF BASIC HEARSAY
1)       What is Hearsay? Need 1) Stmt 2) other than by W not testifying 3) Offered to prove TOMA
CRUMP STEPS TO IDENTIFY HS
STEP 1: Identify the Declarant(s) and Witness
Declarant= theperson who utters or writes the statement or communicates verbally
Witness= person who hears and comes into court, reads statement or observes conduct, they say what the other person said out of court. (can be declarant and still HS).
STEP 2: Is what the declarant said a “statement?”
3 forms: All must be assertions.
1) Oral: declarant says accident all my fault
2) Written: diary accident my fault and read by witness
3) Non-verbal conduct: point, finger, substitute for speech
STEP 3: Is the statement made outside the trial of the case?
NO= NOT HS (anything in trial). If Yes- hallway = HS
If repeat something uttered out of court is hearsay no matter who says it (D and W same)
STEP 4: Is the statement offered for the Truth of the Matter Asserted?
NO=NOT HS, YES, offered for direct true assertion= HS
Look at (1) what declarant asserting to W (2) why stmt being offered? Look at correlation.
NHS Ex: Legally Operative Conduct, effect on listener, notice or knowledge, implied belief, implication of statement
ELEMENTS OF HEARSAY
FRE 801: Hearsay is
1) a 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
2) other than one made by the declarant [person who makes a statement] while testifying at the trial or hearing
3) offered in evidence to prove the truth of the matter asserted
 
2)       Policy: One reason not rely on hearsay is because it’s unreliable and jury can misconstrue and take it as true. Judge could instruct them that stmt to not show true. Lawyer also not able to cross examine at the time the declarant spoke (why not matter D is W)
 
3)       Factors to be considered when evaluating the testimony of a Witness
4 things when cross examine:
1)       Memory- b/w observation and stmt (alzheimer, memory lapse)
2)       perception- not see what thought saw (MJ, glasses)
3)       sincerity- paid (hate father)
4)       narration- go back to stmt- test translation of stmt (language, joking, hear, hallucinating) Not think through then unreliable- b/c cross not take place at time, then come in as reliable
Just b/c no problem with 4 above makes no difference, can’t take policies and say not apply and let stmts in b/c cross exam not necessary b/c doesn’t matter how reliable hearsay appears to be. If fits definition then HS.
4)       Leake v.Hagert- The hearsay rule prohibits use of a person’s assertion as equivalent to testimony of the fact asserted, unless assertor is brought to testify in court, where he may be probed and cross-examined as to the grounds of his assertion and his qualification to make it. [oral stmt by P’s son (d) who told ins adjuster rear light on tractor “had been out for some time”= HS. The son didn’t testify, wasn’t a party and not subject to cross and wasn’t available as a witness b/c was overseas.] Big Question: What if eliminate Witness?
What if the son wished to say, 1) “my fathers light was out 2 months prior” 2) “I told insurance adjuster the light had been out.” Declarant is witness. 2 is still hearsay- doesn’t matter who made statement. Reasons why 1) can’t cross at time when statement was made cross examination at trial too late 2) CL would’ve said stmt not under oath when made 3) perjury
 
B.       Other issues/ Ways that might be relevant to get evidence in- not TOMA
 
1)   HYPOS OF NHS
1)       statements that give rise to self defense
Not hearsay b/c offe

am: Proof of a fact, which is not of itself an issue, but which is relevant only as implying a stmt or opinion of a 3P on the issue is inadmissible in all cases where such a stmt or opinion not under oath would be inadmissible. [Letters from third parties to Marsden prior to date of the will offered to show writers thought M sane were not admitted. 1) declarant= Marsden (testator) 2) witness= townspeople 3) identify assertion- letters 4) offered to show writers thought Marsden sane.]Reasoning: Without cross of the letter writers you can’t show memory, perception, and sincerity. The letters were offered to prove implied assertions and so HS b/c they offered for TOMA.
Federal Rules of Evidence
Don’t make implied offerings HS b/c implications are not making direct assertions
RULE: conduct can be non-assertive, meaning not for the purpose of making a declaration or stmt, and be used for its implied believe. FRE statements offered from implied belief aren’t HS
Not have to give under oath
Trust juries- 801 says intend as assertion, TX- written in for implied belief
Examples: 
put umbrella up – 1)offered to show raining. 2) how close offering to what declarant trying to assert. If ask is it raining and put up umbrella- is conduct and assertion. FR and CL say HS if offer show raining. CL= HS (acting on implied belief raining, FRE let in; CL directly asserting raining = HS. sea ship cpt gets on boat after inspect then leak- ok if not person say leak and got on- show seaworthy