Federal Rules of Evidence – Introduction to Hearsay

Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements


Three: Hearsay

A. What is Hearsay:

1. Underlying Theory: Risks and Safeguards:

  • General Notes:
    • Definition:
      • Hearsay is an out-of-court statement offered to prove the matter asserted
        • Ex. Bystanders statement is offered to prove what it asserts hearsay
    • Letters can also amount to hearsay X testifies that he received letter from bystander Y that says Z
      • Best evidence doctrine would require party seeking to show what letter says to offer the letter itself, or an excuse for not producing it
    • NOTE: If bystander testifies himself he can say whatever he remembers from being at scene
  • Reasons to Exclude Hearsay:
    • 1) Absence of cross examination:
      • Out-of-court statements are not subject to this truth-testing technique
    • 2) Absence of demeanor evidence
      • Out-of-court declarant (Bystander for example) is not under gaze of trier of fact, at least at the time he speaks, so the trier lacks those impressions and clues which voice, inflection, expression and appearance convey
    • 3) Absence of Oath:
      • Usually out-of-court declarant was not under oath at the time he spoke so the trier of fact has no indication that he felt any sense of moral or legal obligation to speak the truth
  • Hearsay Risks:
    • There are 4 hearsay risks associated w/ out-of-court statements
    • 1) Risk of Misperception:
      • Risk not only a function of sensory capacity but of physical circumstance and of mental capacity and psychological condition
    • 2) Risk of fault memory:
      • Cross-exmaintion may be very useful in establishing, eliminating or reducing uncertainties that would arise from memory
      • This ability is not available with hearsay
    • 3) Risk of Mistatement:
      • This is the risk of ambiguity or faulty narration
      • Cross-examination (not available w/ hearsay) can get at the limits and intended meaning of what Bystander has to say
    • 4) Risk of Distortion:
      • Whether conscious or unconscious

B. A Closer Look at the Doctrine

1. What Is A Statement?

  • Assertive Conduct
    • Hearsay doctrine rests of 4 risks of misperception, faulty memory, ambiguity, and insincerity and these risks appear not ONLY w/ verbal expression but ALSO with nonverbal conduct where the actor has assertive intent
      • Ex. Nodding or shaking of the head or shrugging the shoulders in answer to a question, pointing as a means of identifying
    • Evidence of such behavior is also hearsay
  • Nonassertive Conduct:
    • Can also implicate most of the hearsay risks
    • Wright v. Doe d. Tatham (Court of Exchequer Chamber, 1837):
      • Facts:
        • (P) Tatham—cousin and sole heir to the decedent John Marsden brought suit to set aside will, which was allegedly procured by fraud
          • Will left valuable property to Wright (D)
        • D offers letters as proof (from ppl who had died before trial written to Marsden before death)
          • Letters indicated generally that writers thought testator was rational person
      • Legal Issue:
        • Were the letters admissible as proof that D possessed qualities of rationalness, etc? NO
      • Holding/Rationale:
        • Oath: That letters were sent = fact that’s proved on oath
        • Truth of Statement: Letters are meant to prove exactly what they say
          • Creates inference that letter wouldn’t have been mailed unless statements made therein were true
        • Proof of a particular fact, which is not itself a matter in issue, but which is relevant only as implying a statement or opinion of a 3rd person on the matter in issue, is inadmissible in all cases where such a statement or opinion not an oath would be inadmissible
        • Therefore in this case
          • Letters which are offered only to prove competence of testator, that is the truth of the implied statements therein contained, were properly rejected as the mere statement or opinion of the writer would certainly not have been admissible
    • Cain v. George (United States Court of Appeals for the Fifth Circuit, 1969):
      • Facts:
        • Parents bring wrongful death suit for death of their son who died of carbon monoxide poisoning while a guest in D’s hotel
        • P alleged gas had been improperly installed and vented
        • P loses and appeals contends that TC erred in allowing evidence testimony of motel owners concerning number of guests who had stayed in room where son died who’d made no complaints
      • Legal Issue:
        • Was testimony hearsay? NO
      • Holding/Rationale:
        • Testimony went merely to whether motel owner had knowledge of anyone being harmed by heater
        • It was not hearsay evidence as it derived its value solely from credit to be given to witnesses themselves and was not dependent on veracity of competency of other persons
    • Notes:
      • If we were to strictly adopt the view from Cain—that you could speak only to that which you had first hand knowledge of—witnesses wouldn’t even be able to say where they were born (because they’d only know from parents telling them so)
      • System tolerates this kind of testimony even though the witness technically lacks personal knowledge and is technically testifying to hearsay
        • HOWEVER it would be another matter to rely on indirect hearsay to prove contested and substantial points in the case
    • United States v. Check (US Court of Appeals for the Second Circuit, 1978):
      • Facts:
        • Check (D) = patrolman in NYPD who was convicted of possessing cocaine w/ intent to distribute
        • Spinelli = detective who operated undercover and key witness against D who worked with informant Cali
        • Cali and Spinelli go to dinner and Cali goes outside to talk to D Cali comes back and talks to Spinelli
        • At trial, b/c prosecution can’t ask SPinelli what Cali said w/out hearsay problem, prosecution asks Spinelli what he said
      • Legal Issue:
        • Was S’s testimony a form of hearsay? YES new trial
      • Holding/Rationale:
        • Jury:
          • Jury learned from Spinelli’s testimony “I told Cali” that:
            • 1) D wanted S to front the money not only for the drugs he wished to buy from D but also to cover $300 which Cali owed D from a previous drug deal
            • 2) D kept drugs at his house
            • 3) D was supposed to arrive at the meeting w/ an ounce of cocaine and a taste of it, but, inasmuch as the cocaine was not of good quality, D didn’t bring drugs with him
            • 4) After seeing S in street, D felt more comfortable about dealing w/ him and would go ahead and arrange for sale
            • 5) D would produce cocaine that same afternoon
        • Problem:
          • S wasn’t just testifying to his side of the story but also inserting Cali’s statements
          • Out-of-court statements uttered by Cali, introduced by S, were being offered to prove the truth of the matters asserted in them
          • Govt argument that because statements were S’s own out-of-court statements they were excluded from hearsay rule
        • Therefore:
          • Significant portions of S’s testimony regarding conversations with Cali were hearsay, for that testimony was transparent attempt to incorporate into officer’s testimony info supplied by informant who did not testify at trial

2. When A Statement is Not Hearsay:

  • General Notes:
    • Under FRE 801 a statement is hearsay when “offered to prove the truth of the matter asserted.
      • Negative inference of this definition = a statement is not hearsay when offered for any other purposes
    • 6 Common Purposes for Offering Statement:
      • 1) Impeachment
      • 2) Verbal Acts (or part of acts)
      • 3) Effect on listener or reader
      • 4) Verbal objects
      • 5) Circumstantial evidence of state of mind, and
      • 6) Circumstantial evidence of memory or belief
  • Problem 3-C:
    • Abby sues Burton and Bystander is asked which car had light in its favor
    • Bystander says Abby’s then Burton tries to impeach by bringing in hearsay testimony
    • Should be allowed under 801
  • Problem 3-D:
    • State seeks to close down massage parlor used for prostitution
    • Witness testify = undercover agent who went there and was offered service he recounts conversation “you can have it any way you like it” being offered to show solicitation for prostitution
    • Statements not hearsay because admitting for showing verbal acts
      • because its not being used to prove the matter asserted
  • Problem 3-E:
    • John leases part of farm to C for payment = 40% of corn C could grow
    • C borrows money from bank w/ security interest in part of his crop C defaults and bank respossessed double crib of corn from farm and sues to Prager
    • John sues Prager for conversion
    • J gives testimony that he and C went to farm where C pointed out that double crib of corn was J’s share
      • This goes to state of mind whether C thought that corn was his permitted
    • Banks offers testimony that when the loan officer went to field, C pointed out corn in double crib and said it was his
      • This also goes to state of mind bank didn’t think that they were taking anyone’s corn
  • Problem 3-F:
    • Jack is working at Crane company and thinks he smells odor in pipe
  • Problem 3-G:
    • 1 Eagle bar and grill, match books. Probably likely that the holder of the matchbook had been to the Eagle Bar & Grill.
      • Legends on objects as non-circumstantial evidence of identification
    • 2 mug from U of Illinois
    • 3 Both people were testifying on their present knowledge and recollection which falls outside of hearsay


MUST Apply Bridges in the Hearsay Quiz

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