Tuesday, October 19, 2004
HEARSAY – oral testimony or writing reporting an assertion made out of court and offered to prove the truth proposition asserted.
· The persons who reports an assertion will ordinarily be someone other than the person who made the assertion (declarant), although the witness and the declarant may occasionally be the same person.
· Assertion – includes conduct not intended to communicate an assertion
· Out of Court – outside judicial proceedings/outside the present.
· PURPOSE – allow cross-examination of declarant
RULE 801. DEFINITIONS
The following definitions apply under this article:
(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.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) 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.
(d) Statements Which Are Not Hearsay. A statement is not hearsay if–
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is
(A) Inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or
(B) 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, or
(C) One of identification of a person made after perceiving the person; or
(2) Admission by Party-Opponent. The statement is offered against a party and is:
(A) the party’s own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. (The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).)
CLASS NOTES
· Rule 801(c) defines hearsay as any “statement” that meets two requirements:
(1) It must be a statement “other than one made by the declarant while testifying at the [trial].”
(2) It must be offered “to prove the truth of the matter asserted” in the statement.
· Thus, as under existing law, typically what we are dealing with when we speak of hearsay is an out-of-court statement offered in evidence via the testimony of someone who heard it, or via the documentary embodiment if the statement is written, Offered To Establish The Facts Recounted
made disregarding the contents.
Hanson v. Johnson – support fact that statement was made – NOT HEARSAY
The trial court was correctly admitted the testimony of P and the bystander as to what T had said in their presence.
· When words were offered to prove that the words, whether true or not, were actually spoken, the report is not hearsay.
McClure v. State – support “jealous rage” defense – NOT HEARSAY
The trial court erred is excluding D proffered evidence.
· Statement was offered for the purpose to show that D, in fact, heard the motive giving statement.
United States v. Zenni – Implied Assertions
The proffered evidence admissible was admissible to prove D did the accused act.
· Rule 801(a)(2) provides that nonverbal conduct of a person is a statement within the rules definition of hearsay ONLY IF it is intended by the person as an assertion.
· The callers on the taped phone conversations intended to assert to place bets, NOT that bets were taken at this number.
· Thus, statements are hearsay if
o (1) they are offered for the truth of the matter implied in the statement and
o (2) the declarant intended to communicate that implication.
Any doubt on the facts concerning whether or not there was such intention would be resolved by the judge pursuant to Rule 104(a).
