#13112 - Hearsay - Evidence (Duke Beskind)

1. 801(c) “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and [OCS]

(2) a party offers in evidence to prove the truth of the matter asserted in the statement. [TOMA]

2. Declarant: The person who made the statement. FRE 801(b).

   1. If you repeat yourself, it could be out of court statement.

   2. Witness: I told Mary that the light was red “I” is the declarant.

3. Statement: An oral or written assertion or non-verbal conduct intended to be an assertion. FRE 801(a).

   1. Must be assertion: position one takes that something is true. Intended as positive information transfer.

      1. What’s not an assertion: questions, directives (mind your own business), reflexive verbal behaviors (ouch), reflexive conduct.

      2. Silence: Generally would not be a statement unless a reasonable person would be expected to respond. Most often in response to an accusatory question or statement.

      3. Self-quoting: is OCS and can be hearsay

   2. Paraphrase OK: Doesn’t matter if a quote or paraphrase, both are just as much hearsay.

   3. Conduct: is the conduct trying to convey a message? i.e. a statement.

   4. Form: Can be in words, writings, or actions

4. Truth of the Matter Asserted: Offered to prove the truth of what the words say.

   1. Evidence of what the speaker said about past event: Not TOMA

   2. Evidence of what the speaker believed about a past event: Maybe TOMA. Is what’s really going on showing that the person believed it and therefore had a justifiable self-defense claim or for showing that the other person was the first attacker.

   3. Evidence of the Past Event: Yes TOMA

5. When is a statement hearsay? 4 step analysis

   1. Was there a statement or conduct with an assertion?

   2. Was the statement made out of court?

   3. Is it being offered in court for TOMA?

   4. Is it other than a Rule 801(d) exclusion?

      1. If the answer to all 4 is “Yes,” it is hearsay and excluded—unless it falls within a recognized exception.

6. Rule 802 Hearsay is not admissible unless any of the following provides otherwise:

   1. a federal statute;

   2. these rules; or

   3. other rules prescribed by the Supreme Court

7. When is a statement not hearsay?

   1. A statement is not hearsay when it is offered for any purpose other than for its truth

   2. Examples:

      1. Just to show that the words were said, not to prove that they were true

      2. Impeachment [is this on cross? Can you use extrinsic evidence here?- refer to impeachment question]

      3. Legal significance/ verbal acts

         1. Giving perjured testimony

         2. Robbery “I have a gun, give me your money”

         3. Offering to sell contraband

         4. Demanding ransom

         5. Blackmail

         6. Defamation

         7. Firing someone

         8. Offer/acceptance in contract

      4. Effect on listener or reader

         1. Out of court statement used to show why a listener acted in a certain way; motive

         2. That motive must be relevant

         3. warnings

      5. Circumstantial evidence of state of mind/ belief

         1. The statement is used not to prove the truth of its contents, but to provide the finder of fact with a basis for drawing an inference concerning a person’s state of mind

8. 127. Prosecution seeks to admit Quinn Washington’s testimony that Leslie Mitchell appeared “frightened and nervous.” Defense objects that the “nonverbal conduct” of Leslie is hearsay. Respond for the prosecution. Reply for the defense. [Mitchell, 44]

   1. Merely an observation, not a statement (no assertion)

9. 128. Prosecution seeks to admit Slyviak’s testimony that Joe was walking furtively toward the station house back door. Defense objects on hearsay grounds to the “nonverbal conduct” described. Respond for the prosecution. Reply for the defense. [Mitchell, 20]

10. 129. Jesse seeks to testify that Emerson rolled her eyes after Mrs. Easterfield asked Jesse to go look for the brooch. Defense objects on hearsay grounds. Respond for the plaintiff. Reply for the defense. [MacIntyre, 107]

11. 130. Reverend Taylor seeks to testify that Mr. Easterfield never complained about Jesse’s demeanor or work. Defense objects on hearsay grounds. Respond for the plaintiff. Reply for the defense. [MacIntyre]

12. 131. Defense in MacIntyre calls Holman who testifies that he told Jesse in advance about his plans to rob the gas station. After testifying, he returns to San Diego. In rebuttal, plaintiff offers Holman’s statement in the transcript of Jesse’s plea. For the defense make and argue any objection(s). For the plaintiff respond. [MacIntyre, 181-83]

13. 132. Easterfield is testifying. He is describing the events of July 17 and says “I told her she could stay . . . .” Plaintiff objects and moves to strike as hearsay.

Defense to respond. Plaintiff to reply. [MacIntyre, 122]

1. Not TOMA, just circumstantial evidence that Mr. E wasn’t angry.

14. 133. Easterfield then testifies that Jesse responded “No!” to his invitation for her to stay. Plaintiff objects and moves to strike on hearsay grounds. Respond for the defense. Reply for the plaintiff. [MacIntyre, 122]

15. 134. Marlow testifies for the defense. On cross-examination, plaintiff asks if he has heard the “rumor” that about the firing of the previous executive director. Defendant objects on hearsay grounds. Respond for the plaintiff. Reply for the defendant. [MacIntyre, 163]

    1. It’s a statement.

    2. Not TOMA, but to prove bias,

16. 135. Jesse MacIntyre testifies that Marlow told her that she “is exceptionally well qualified for the job.” Defense objects and moves to strike on hearsay grounds. Plaintiff to respond. Defendant to reply. [MacIntyre, 111]

17. 136. And, just for laughs. Kelly Emerson is asked to state her name for the court and the jury. Plaintiff objects on hearsay grounds and offers to conduct voir dire of the witness to show that she is relying on hearsay from her mother. Respond for the defense. [MacIntyre]

18. 137. Plaintiff in MacIntyre offers an edition of the Nita City Tribune containing the ad placed by the Nita Athletic Club. Defendant objects on hearsay grounds. For the plaintiff, respond. For the defendant, reply. [MacIntyre, 227]

19. 138. Taylor testifies consistently with his deposition as to Jesse’s fine qualifications for the job at the club. Defendant seeks to introduce the letter he wrote to the Nita Transit Authority to impeach his testimony. For the plaintiff make and argue any appropriate objection(s). For the defense, respond. [MacIntyre, 140, 203]

20. 139. Argue the admissibility of Jesse’s statement, offered by her on direct, that Marlow’s secretary called her on July 22 and:

(A) asked her for her social security number,

(B) described at length the employees’ lounge at the club and told Jesse in detail how lavish it was, and

(C) said, “I have already prepared your W-4 forms. They are here on my desk.” [MacIntyre, 111-12]

1. (A) it’s a question, not an assertion. Not hearsay.

2. (B) not TOMA, not hearsay.

3. (C) not TOMA, it’s used to show that someone is hired, not hearsay.

21. 140. Marlow testifies to the club’s firm policy against hiring ex-convicts when Jesse applied. Rev. Taylor is asked whether Marlow had previously told him they would hire ex-convicts. This alleged conversation was not raised during Marlow’s cross. For the defense make any appropriate objection(s). For the plaintiff, respond. [MacIntyre, 140]

    1. Defense: 403, hearsay,

    2. Plaintiff: this is for impeachment

    3. Defense: extrinsic evidence for impeachment, can’t do this unless on cross

22. 141. Plaintiff offers Reverend Taylor’s March 12 letter to Easterfield. Defendant’s only objection is hearsay. For the plaintiff, respond. For the defense, reply. [MacIntyre, 197]

23. 142. Quinn Washington testifies for the prosecution and says that, on the night of 9/10, she told Mitchell, “Joe, what have you done to Leslie? Why don’t you leave her alone? She’s afraid of you, Joe.” Defense objects on hearsay grounds and moves to strike. For the plaintiff, respond as to each of those sentences, one at a time. For the defense, reply. [Mitchell, 44]

    1. motive

24. 143. On redirect, Jesse is asked why she pled guilty. She answers she did that because her lawyer told her that if she didn’t she would be found guilty anyway and sentenced to fifteen years. Defense objects and moves to strike on hearsay grounds. For the plaintiff, respond. For the defense, reply. [MacIntyre, 114-15]

    1. Not TOMA, but to explain why she took the plea (she was scared)

25. 144. Kelly Emerson is testifying for the plaintiff about her call to Jesse after finding the brooch. She says Jesse told her “I can’t get a job. Every I turn Mr. Easterfield ruined my chances for the job.” Defense objects on hearsay grounds. For the plaintiff, respond. For the defense, reply. [MacIntyre, 147-48]

26. 145. Ross Easterfield testifies for the defense. On cross-examination, the plaintiff asks him what Mrs. Easterfield said as Jesse left the library (“That vulgar little tramp!”). For the defense, make and argue any appropriate objection(s). For the plaintiff, respond. [MacIntyre, 121]

    1. Objection: relevance, 403, hearsay

    2. Not TOMA, but to show malice

27. 146. Jesse calls Gina Lordowicz, a pawnshop owner in Nita, who is asked a question the defense knows will elicit evidence that she was approached by a small-time thug whose name she doesn’t know who told her “this Easterfield woman I know wants to unload a piece of jewelry off the books.” For the defense make and argue any appropriate objection(s). For the plaintiff, respond. [MacIntyre]

    1. relevance, 403, hearsay

    2. Plaintiff: goes to whether Jesse took the brooch, alternative theory

28. 147. Jesse calls Frank Holman and her counsel asks, after appropriate foundation, “What did you tell Jesse about your plan to rob the gas station.” Defense objects on hearsay grounds. For the plaintiff, respond. For the...