The Hearsay Rule: Definition and scope of the Hearsay Exclusion

Question 1

FRE 801 Definitions

Answer 1

Question 2

FRE 802: Hearsay Rule

Answer 2

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.

Question 3

Rational for the Modern Hearsay Rule

Answer 3

1. Modern courts justify the Hearsay rule based on the belief that the best way to tell if telling the truth is to run them through a cross-examination. The use of hearsay, therefore, is presumptively a bad thing because the party against when the evidence is being offered doesn’t have the opportunity to test the declarant.

       a. We are only going to encounter dangerous thenm where it would make sense to insist on cross-examination. Yet, there are many times where there are a hearsay issue where it would noit make sense to cross-examine.

Question 4

4 Stages of Analysis to Determine Hearsay:

Answer 4

1. Is there a Declarant?
   a. “Declarant” is defined in FRE 801(b)
2. Is there a Statement?
   a. “Statment” is Defined in FRE 801 (a)- (can be verbal or non- verbal assertion)
3. Was that Statment Made at a Time Other then While on the Stand?
   a. Statement Cannot have been made on the witness stand during the proceeding in question……. 801(c)
4. Is the Stamtne used to Prove the Truth of the Matter Asserted?
   a. Defined in FRE 801 (c)

Question 5

When is there a statement (Verbal Non-Statment and Non- Assertive Conduct)

Answer 5

Question 6

Non-Verbal Conduct as Hearsay

Answer 6

Question 7

Silence as a “Statment” Under the Hearsay Exclusion?

Answer 7

Question 8

When is a Statement Introduced “To Prove the Truth of the Matter Assereted”?

Answer 8

1. General Rules:

                             a. It is the purpose for which the evidence tis offered that determines whether or not it is hearsay or not!
   							 
                             b. The term 'proved for the proposition for the matter asserted' does not necessarily mean what the lawyer seeks to prove.... becasue ethis would always be the case.... the "matter asserted" is the assertion the declarant made out of court!(not the matter altimately to be proved in court)

2. Stensvaag’s Test:

    a. ASK whether the stament introduced supports the propostion only if the statement is true?
   	
    b. Alternatively, would this evidence supposrt this stament id the stament is not rue? 
   	
                      i. If this premise, that the stament is true, is necessary anywhere along the logic trail, then the stament is being offered into evisdence to prove the propostion asserted. 

3. Examples:

    a. Portuguese Gentleman:
   			
           i) Portuguese gentlemen makes a statement that supposedly ends up convicting Sir Walter Raleigh
   
           ii) We would have to assume that the Portuguese gentleman’ had the ability to: perceive, personal knowledge (FRE 602), Memory, Narration, Sincerity (four testimonial capacities)
   
          iii) Would the Portuguese Gentleman’s Statement be Considered “Hearsay” Today?
      
              § Declarant—we have a declarant b/c there is a person who makes a statement
            - § Statement—we have an oral statement
           - § Made Not While Testifying—yes, not made at court
           - § Offered in Evidence to Prove Truth of Matter Asserted—

(A) STATEMENT (“R&C will Cut the King’s Throat)
+ (B) CONCLUSION: RALEIGH IS TREASONONOUS
(M) THE STATEMENT IS TRUE

b. State v. English

 i) Background:

        - § Defendant told his friend that he would pay him to kill the wife
        - § Defendant now wants to introduce an alleged confession by David Locke, where he supposedly said that he “killed the victim.”

 ii) Analysis: Is it Hearsay?
   
           -§ Declarant—yes, Locke is a person
         -§ Statement—yes, it is an oral assertion
         -§ Made at Trial—Statement not made on the witness stand
         -§ Offered for Truth of Proposition— (A) STATEMENT (“I Killed the Victim”)
\+                  (B) CONCLUSION: English Didn’t Kill Wife (M) That Locke Killed the Wife

(A) YES! The truth of the matters asserted is that Locke killed the wife! It is clear that the lawyer wants the jury to believe that the statement is true (that Locke killed the wife) and thus casting doubt on the case against the Defendant.

Question 9

Words/conduct which Constitute a “Statment” But are not Offered to prove the Truth of ther Matter Asserted.

Answer 9

Question 10

The Hearsay Prohibition Includes Prior Consistent Statements!

Answer 10

Question 11

Who Decides Whether a Statement or Conduct Constitute a “Statement” Under FRE 801 (i.e., intended as an assertion)?

Answer 11