Chapter 3 - Hearsay

Terms in this set (21)

Essentially: When the statement is not relevant for the content of the statement's truthfulness, then it is not hearsay.

i. *When an out-of-court statement is relevant w/o regard to whether it conveys accurate information, then the hearsay prohibition does not operate and testimony about the statement is allowed.
1. How can a litigant ever claim that an out-of-court statement is relevant w/o also claiming that the jury should believe the substance of what the speaker said?
2. Example: Suppose a party needed to prove that security guards were patrolling a warehouse on a particular evening. A janitor could testify that as he passed the warehouse door he heard the guards talking to each other. The janitor would be permitted to quote the words the guards said b/c proof that the words were said is relevant to an issue at the trial (were the guards in the warehouse?), and using the words as relevant to that issue does not require that the content of the guards' statements be true or be believed by the jury. No matter what the guards said, and no matter whether it was true or false, the fact that they were speaking supports the proposition for which the janitor's testimony is sought to be introduced: The guards were present in the warehouse. The guards' words would be introduced not to show that what they asserted was true, but just to show that the words were said.
ii. The plaintiff's case in a defamation suit provides another clear example.
1. Example: The P must prove that the D said something defamatory about the P, but when the P has someone testify about the D's out-of-court statement, the P is not seeking to have the jury believe that the statement was accurate. The P needs to have the jury believe that the allegedly defamatory words were uttered, not that they were a truthful report of some aspect of reality. The P's position is that words were said, not that the words were true. For this reason, the hearsay rule allows quotation of a D's out-of-court statement.
v. Words introduced just to show their effect on the hearer or reader are another broad class of non-hearsay in which out-of-court words can be relevant w/o their proponent asking the trier of fact to treat them as true.
1. This is where warnings are placed
2. Example: In a tort suit claiming that a manufacturer should have changed its design b/c it had received reports of injuries earlier than the plaintiff's injury, the reports of those other injuries would be relevant in two ways, of which one would constitute hearsay and one would be non-hearsay.
a. To show that the out-of-court reports accurately conveyed information about those past injuries, the reports would be hearsay, since that use depends on their information being true.
b. To show that the manufacturer had received information that a reasonable manufacturer would investigate, the reports are not hearsay since that use does not require that the reports have contained accurate information; it only requires that there is a showing that the manufacturer actually did receive the reports.
3. Example: Same analysis applies where a person's motivation for committing a crime is at stake: if that person sought to establish that he was acting in response to a threat, testimony that someone once said to him, "Commit this crime or I'll kill you," would be admissible.
a. It would be significant in the trial b/c of the effect those out-of-court words allegedly had on the person charged w/ the crime, not b/c of the truth or falsity of the details of the threat.
This is never regarded as attempted to convey information

ii. Most conduct is "nonassertive," intended to accomplish something but not to convey information.
1. However, nonassertive conduct may still indicate what a person thinks about a subject
iii. Example: the way non-communicative action can be relevant at a trial is illustrated by an effort to prove that a ship was seaworthy by introducing testimony that an experienced ship captain examined it and then sailed it.
1. Would the report of that captain's actions be hearsay? Under the Federal Rules, the answer is no b/c the captain was intending to take a trip on a ship rather than make an assertion - the conduct can be described w/o any hearsay concerns
2. In jurisdictions that apply a broader definition of hearsay, testimony describing what the captain did would be called hearsay b/c in order to be relevant it must be treated as an expression of what the captain believed to be true about the ship
iv. Federal Rules call it hearsay for a witness to testify that the captain once said, "This is a fine ship," but they allow a witness to say that he or she saw the captain examine the ship and then sail on it.
1. This is b/c sailing on a ship is nonassertive conduct, conduct meant to accomplish something but not to effect a communication or make an assertion
v. Drafters of federal rules believed that the risk of insincerity in statements by an out-of-court speaker is greater than the risk of insincerity in the actions of an out-of-court actor.
a. *FRE rejects this result on the theory that the risk of lying about a particular subject is greatest when an out-of-court statement is explicitly about a subject. If a conclusion about one subject can be drawn from a speaker's statements on another subject, the chances that the speaker made a false statement about the second subject to create a false impression about the first subject are slight. vi. Another exclusion from the Federal Rules definition of hearsay is testimony about an out-of-court statement that is offered to prove something the speaker did not intend to assert.
1. It's difficult to distinguish b/w a statement claimed to be relevant b/c it is circumstantial evidence of some fact
2. Example: in a suit alleging that a landlord failed to obey a regulation requiring that apartments have adequate heat during winter months, the P might seek to introduce testimony about the following out-of-court statements made by people in an apartment as part of the P's proof that the apartment was very cold:
i. "It's very cold in here."
ii. "This is a great place for polar bears."
iii. "I need to put on a sweater."
b. First statement would be hearsay b/c declarant stated that the apartment was very cold and the statement is sought to be introduced to show that the apartment was very cold
c. Second statement is hearsay b/c everyone would agree that the sense of the declarant's words, the meaning the declarant meant to convey, was that the apartment was very cold. For that reason, statement is hearsay when offered as proof that the apartment was too cold.
d. Third statement one would argue is not an assertion about the temperature of the apartment since its main subject was how the speaker would be dressed. The likelihood that the statement might be a false characterization of something else (the temperature of the apartment) is reduced.
i. Under FRE, the statement about the sweater would be an example of "verbal conduct that is assertive but offered as a basis for inferring something other than the matter asserted."
3. Example: To prove that deceased man was sane when he wrote his will, lawyer introduces into evidence letter sent to the man by others that were written in a straightforward, friendly manner and involved matters of business. Court found that this was hearsay b/c they were equivalent to out of court statements by the writers that they thought the testator was sane. Since that was their claimed relevance, they were being offered as a basis for a finding that the writers' ideas about the testator's sanity were correct.
Essentially, for monograms, inscriptions, and commercial signage, can't introduce evidence that b/c a car had "ABC Pizza" on it, that it was owned by "ABC Pizza." This is hearsay. To get around this, first introduce evidence that ABC owns cars that say ABC Pizza on them. Then get a witness to say that the person who ran the red light was driving a car that had "ABC Pizza" on it.

b. *Where the identifying characteristics of a thing are a monogram or inscription, or someone's name, the hearsay rule is implicated if a party tries to use the writing to show that its meaning is true. If a party just uses a writing to show that the writing existed, and uses other proof to suggest that things w/ that writing have certain attributes (such as ownership by the person named in the monogram or inscription), there is no hearsay problem.
a. Example: To prove that a hit-and-run vehicle belonged to ABC Pizza, testimony that writing on the side of the vehicle said "ABC Pizza." This would be relevant. Since the words are equivalent to a statement, "This truck is operated by ABC Pizza," it is clear that they are sought to be introduced to prove the truth of what they assert. Therefore, the words meet the standard definition of hearsay. (There's an exception to this if ABC Pizza is a party to the case though - discussed later).
i. One approach to avoid the hearsay approach would be to find evidence from other source that trucks w/ the words "ABC Pizza" on them are operated by ABC Pizza. Then, testimony that the hit-and-run truck had "ABC Pizza" on it could be offered just to prove that the words were on the truck w/o any requirement that their underlying meaning be taken as true merely b/c of what the words say
ii. Once it is established that the hit-and-run truck said "ABC Pizza" and that ABC Pizza did own trucks w/ that type of writing on them, the problem of trying to draw meaning from the out-of-court words disappears
iii. The analysis becomes the same as if the victim saw a truck w/ blue and yellow spots and there was testimony that the D operated trucks w/ blue and yellow spots