Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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A. The Rules Against Hearsay (407)

The purpose of the initial problems is to help convey the basic idea of the concept of hearsay, not to work out the various exceptions to the hearsay rule. In the language and model suggested by Tribe, Triangulating Hearsay (412), the question in each of these problems is, dos the chain of inferences for which the evidence is offered require a "trip" through the mind -- and hence reliance upon -- the testimonial capacities of an out-of-court declarant?

In addition, these introductory problems ask normative questions such as "should the evidence be excluded?" These questions are included not for the purpose of triggering detailed discussion of the various hearsay exceptions at this point, but rather to suggest in a general way the range of considerations which might affect the decision whether to exclude evidence the use of which entails a trip through the mind of a non-testifying declarant.

For interesting articles on the federal rules' approach to hearsay, see Wellborn, The Definition of Hearsay in the Federal Rules of Evidence, 61 TEX. L. REV. 49 (1982), Graham, "Stick Person" Hearsay: A Simplified Approach to Understanding the Rule Against Hearsay, 1982 U. ILL. L. REV. 887 (1982), and the articles cited at page 407 of the text. For an interesting article on how jurors actually deal with hearsay evidence, see Meine, Park, and Borgida, Juror Decision Making and the Evaluation of Hearsay Evidence, 76 Minn. L. Rev. 683 (1992).

Problem - Arsenic and Hors d'oeuvres (408)

The point:

This problem demonstrates the difference between classic oral hearsay and testimony about one's own experience and observations.

Answers and Analysis:

1) Admissible, not hearsay. W is testifying about his own personal experience. Crediting his statement involves a trip through his mind, and reliance upon his testimonial capacities. But because W is a testifying witness, those capacities can be tested by cross-examination.

2) Hearsay. The statement by W is offered to prove the truth of the matter W asserted and was not made by W while testifying. In order to believe that D bought the rat poison we must rely on the testimonial capacities of W. The fact that W is available in court cuts two ways. On the one hand, his availability makes it unnecessary to rely on the hearsay statement; W could be called to testify directly to what D did. On the other hand, the typical objection to hearsay testimony is that the declarant cannot be cross-examined. Here he would be called to the stand and cross-examined, though the process of doing so might be awkward. But the defense should not have to call W. It is entitled to have the prosecution produce its own witnesses so that there is some direct examination against which to juxtapose cross examination.

Problem - Murder at the Seaside Bistro (409)

The point:

Hearsay may be documentary as well as oral and will be excluded even if the declarant is dead.

Answer and Analysis:

Objection sustained; hearsay. The statement is offered for the truth of the matter asserted and is obviously not a statement made by H while testifying. To rely upon the statement for the proposition that D shot V would require reliance on H's testimonial capacities. Hearsay can be written as well as oral.

Should this evidence be excluded? The statement is clearly relevant and highly probative. It was made close in time to the event by a witness who claims to have seen the shooting. But there is no way to test H's testimonial capacities, especially his sincerity. Even though the prosecution is not responsible for H's inability to appear (contrast Raleigh), and even under the most liberal rules for statements of deceased persons, this statement would be inadmissible. (See deleted rule FRE 803(b)(2) as proposed by the Supreme Court, which would generally admit statements of recent perception by available witnesses but not if made in response to a person investigating the matter.) This problem begins consideration of the problem of confrontation in criminal cases.

Problem- Assault on Massachusetts Avenue (409)

The point:

Hearsay may consist of conduct as well as spoken statements.

Answers and Analysis:

1) Objection sustained; hearsay. P is testifying to Andy's statement which is being offered for the truth of the matter asserted. The statement is not one made by Andy while testifying. Crediting Andy's statement would entail relying on his testimonial capacities.

2) Objection sustained; hearsay. It makes no difference whether Andy communicated his statement orally or by pointing. His pointing was non-verbal conduct intended as an assertion. FRE 801(a). Crediting the assertion involved in his act of pointing would entail relying on his testimonial capacities just as if he had made an oral statement.

Problem - Murder in the Ajax Building (409)

The point:

Not all statements or documents are hearsay. It depends on whether they are offered for the truth of the matter asserted. To make this determination, you must know the purpose for which the evidence is offered.

Answer and Analysis:

1) Objection overruled; not hearsay. Scalpel's testimony is based on personal observation. His capacities for clarity, sincerity, memory, and perception can be tested by cross-examination.

2) Objection overruled; not hearsay. Nosey is testifying to her personal observations. The cross-examiner would elicit from Nosey detailed descriptions of how the body looked when it was falling and when it hit, then argue that she, like any other normal person, was undoubtedly fixated by the falling body and looked up at the window of 1601 only after the body hit the ground. The cross-examination would also test her ability to perceive and remember details seen from her angle and distance.

3) Objection sustained; hearsay. Kojak is reporting a statement by Agnes which is being offered for the truth of the matter it asserts. Crediting the statement would require reliance on Agnes's testimonial capacities. Should Agnes's statement be excluded? Where is Agnes? Why isn't she here to accuse David directly? There are many questions a cross-examiner might want to ask her: Perception: Was she in position to see? Memory: Wasn't she extremely upset by Claire's death, and hadn't she taken pills between noon and six? Sincerity: Isn't it a fact that she bitterly hated David because he had jilted her in favor of Claire? Clarity: When Agnes said that David shoved Claire "who then fell to her death", did she mean that David intentionally shoved Claire out the window?

4) Objection sustained; hearsay. Belle is reporting her own prior statement. It is a statement which was not made while she was testifying and is apparently offered for the truth of the matter asserted. Yet the statement hardly presents a serious hearsay problem.

Since Belle is on the stand she can say whether or not she stands by her assertion that David pushed Claire, thus her testimonial capacities relating to this assertion can be tested. Nonetheless, this statement is inadmissible under FRE 801(d)(1) unless offered to rebut a charge of recent fabrication or improper influence.

5) Objection overruled; not hearsay. The letter is not offered for the truth of the matter it asserts. The fact that the letter was found on the copier and that David might have seen it suggests a motive even if it is not true. The letter is not offered to prove that Claire was three months pregnant (Scalpel testified that she was not). Nor is the letter offered to show that Claire thought she was pregnant. It is offered to show what David might have thought and how he might have come to think so.

Problem - Hot Goods (415)

The point:

In applying the hearsay rule, you must understand the purpose for which evidence is offered. To understand that, you need to know the elements of the claim or charge.

Answer and Analysis:

Objection overruled; not hearsay. Jenkens' statement is not being offered for the truth of the matter it asserts. D is offering it instead to show that he had a basis for believing that the goods he received from Jenkens were not stolen. For this purpose it is not necessary to credit the statement; thus it is not necessary to rely on Jenkens' testimonial capacities.

Problem - Slander per Se (415)

The point:

A statement offered simply to prove that the statement was made is not hearsay.

Answer and Analysis:

Objection overruled; not hearsay. P is not offering the statement for the truth of the matter it asserts, but merely to prove that the statement was made. The fact of the statement having been made is an element of defamation. Far from relying on the statement for an inference that the matter it asserts is true, P's claim is that the statement is false.

Problem - Speaking Out (416)

The point:

Identifying hearsay is not a matter of rigid application of a definition. The identification of hearsay requires an understanding of the chain of inference.

Answer and Analysis:

Objection overruled; not hearsay. The example is of an out-of-court declaration not offered for the truth of the matter asserted but where the matter asserted is, coincidentally, the same as what is sought to be proved. The statement appears to be an out-of-court declaration offered for the truth of the matter asserted. However, proof of the proposition for which the statement is offered does not depend on crediting the testimonial capacities of the out-of-court declarant. The fact that the statement was made proves the proposition for which it was offered, independent of the content of the statement. The child might equally have said, "I cannot speak."



Problem - "Palming Off" (416)

The point:

Statements offered for their circumstantial value (i.e., that they were made) are not hearsay.

Answer and Analysis:

Admissible to show that the author of the letter perceived that the knife had been made by P when in fact it had not been made by P, the inference being D-Company knives were confusingly similar.

The problem is an example of evidence offered for an inference which (using Tribe's model again) goes through belief and memory to perception. The proposition for which the statement is offered is that D 's product looks so much like P's that it causes confusion. The statement provides circumstantial proof of the similarity of the knives because the confusion would not have arisen without the similarity.

Another illustrative example of a statement used in this circumstantial (non-hearsay) fashion is the following: To prove that it was D who broke into Professor N's office, evidence is offered that D told W on the day before the exam in Professor N's course what the questions would be on Professor N's exam. W's statement is offered to prove that D knew the contents of the exam before it was given, and therefore that D must have had an opportunity to perceive the questions.

The knife problem is based on W.E. Bassett Co. v. H.C. Cook Co., 164 F. Supp. 278, 284 (D. Conn. 1958).

Problem - Summary Judgment (416)

The point:

The hearsay rule does not apply to the process of judge's determining issues of law, only to the process of determining issues of fact in a trial.

Answers and Analysis:

Objection overruled; even though the affidavit is hearsay. The affidavit records an out-of-court statement by Woodstein which is being offered for the truth of the matter it asserts. Hearsay is excluded, however, only by the operation of the evidence rules, subject to other rules passed by Congress. (See FRE 802). The Federal Rules of Civil Procedure (Rule 56) expressly provide for the introduction of evidence by affidavit on motions for summary judgment. (See Advisory Committee's Note to FRE 802 and 104(a)).

This is consistent with the purpose and function of the hearsay rules and the summary judgment procedure. The hearsay rules promote reliable fact-finding when facts are in dispute at trial. When there is no trial because the facts are not in dispute, there is no need for the hearsay rule. On a motion for summary judgment, factual issues are not decided. The motion cannot be granted if there is a genuine issue as to any material fact. Thus, facts are either not contested or the motion is denied and the case then proceeds to trial where the rule against hearsay will apply.

Problem - Contractual Terms and Hearsay (417)

The point:

Contractual terms, when offered to prove that a contract exists, are not hearsay. They are verbal acts, or automatically true.

Answer and Analysis

Objection overruled; not hearsay. The document is an assignment which has the legal effect of assigning the claim. The document proves the assignment without necessitating that the factfinder rely on the testimonial capacities of an out-of-court declarant.

Problem - The Dissatisfied Purchaser (417)

The point:

Complex statements must be broken down into their parts. Some parts may be hearsay; others may not be.

Answer and Analysis:

(1) Objection overruled; not hearsay. The statements in the advertisement have legal significance because of the fact and manner of their making, regardless of what the declarant actually believed or intended to do.

(2) Objection sustained in part, overruled in part. "I have inspected my lot" is hearsay because it is offered for its truth. "I am dissatisfied" and "I demand my money back" are not hearsay if offered to prove that P duly notified Desert Land Co. of his claim for the return of his down payment. According to the terms of the ad, Sucker does not have to be truly dissatisfied to get his money back. He only has to inspect his lot, state his dissatisfaction, and ask for his money.

Problem - The "Corn-Crib" Case (417)

The point:

Statements which have direct legal consequences or are "automatically true" because they are "verbal acts" are not hearsay.

Answers and Analysis:

(1) Objection overruled; not hearsay. Although the tenant's statement might appear to be hearsay because it is an out-of-court statement apparently offered to prove the truth of the matter it asserts, it is not hearsay because the making of the statement had the legal effect of partitioning the corn. According to the law of sharecropping, the com in the cribs became Hanson's at the moment the tenant specified those cribs of corn as Hanson's.

The statement was of a kind sometimes described as a "verbal act," or as an "automatic truth." Saying it made it so; thus, there is no xeliance on the declarant's testimonial capacities.

This problem is taken from the famous case of Hanson v. Johnson, 161 Minn. 229, 201 N.W. 332 (1924).

(2) Objection sustained; hearsay. The tenant's statement to the bystander has no independent legal significance. Crediting the statement for the truth of the matter it asserts would, therefore, require a trip through the mind of the out-of-court declarant.

Note on Non-assertive Conduct (418)

(When Conduct Presents Hearsay Problems)

Non-assertive conduct is probably the single most difficult aspect of hearsay for students and teachers to master. The following problems illustrate the difficulties and begin the process in earnest of grappling with the federal hearsay rules.

Difficulty stems from two sources. First, the chain of inference involved in relying upon non-assertive conduct does involve a trip through the mind of a non-testifying actor, thus non-assertive conduct conceptually presents hearsay problems. Yet the federal rules exclude nonassertive conduct from the definition of hearsay. the result is that non-assertive conduct is conceptually, but not legally, hearsay. There are good reasons for excluding non-assertive conduct from the definition of hearsay rather than recognizing that it is hearsay and creating an exception for it (see Falknor, page 416), but it makes the subject more difficult to understand.

Second, it is difficult to grasp what is and what is not an "assertion" within the meaning of FRE 801 (a) because often conduct is accompanied by assertion, and often conduct has both communicative and noncommunicative purposes.

Problem - Captain Cook and Davey Jones (422)

The point:

Conduct is not an assertion unless it is intended to communicate some thing .

Answers and Analysis:

Objection overruled; not hearsay according to the FRE definition (see FRE 801(a)), although a factfmder who concluded that the ship was seaworthy based on the captain's actions would necessarily be relying on some of the captain's testimonial capacities - perception and clarity. The key consideration under the federal rules, however, is that the factfinder would not have to be worried about the captain's sincerity.

This classic example of "non-assertive conduct" is taken from an example in the famous case Wright v. Doe d . Tatham, 7 A. & E. 313, 386-88 (1837), which is in almost every evidence book. The captain did not inspect the ship and take his family aboard in order to make an assertion about the seaworthiness of the ship. Compare the example of James Schlesinger, then Chairman of the AEC, telling reporters that he was taking his wife and daughters with him to observe the nuclear test on Amchitka island, a statement Schlesinger apparently made for purposes of calming public fears about the test. See Tribe, Triangulating Hearsay (412).

Problem - Black Crepe (422)

The point:

More on non-assertive conduct - another tough case.

Answer and Analysis:

(1) Hearsay -- though very hard to call. The hanging of the crepe is a ritual announcement of a death in the family. Its function is to announce the death and invite mourners. It appears to be conduct intended as an assertion, and hence hearsay within the definition of FRE 801(a). More important in these circumstances, however, is that the expiration of the insurance policy created a context in which the family's reason for hanging the crepe is suspect.

(2) Not hearsay, although, again hard to call. The doctor covers Howard's body with a sheet because Howard is dead. His action has a ritual character which announces the doctor's conclusion, but is also a fairly automatic response under circumstances which suggest no reason to suspect that the doctor is staging his action.

The Advisory Committee's Note to FRE 801 (a) states that the burden is on the party claiming that an intention to assert something existed; "ambiguous and doubtful cases will be resolved . . . in favor of admissibility."

Problem - Hot Pursuit? (423)

The point:

More practice identifying non-assertive conduct.

Answer and Analysis:

Objection overruled; not hearsay. If Dr. Alberstrom recognized the man as his assailant and ran the car into him for revenge, then Dr. Alberstrom's conduct is not hearsay. The conduct was not intended as an assertion. The intent was to hurt D.

Suppose Alberstrom shouted "That's him!" as he swerved. That statement, if offered to prove that D was his assailant, is hearsay (possibly admissible under FRE 803(1) or (2)). But the fact of Alberstrom s having made this statement does not change the analysis of his conduct. The purpose of his conduct was still to injure D, not to make a statement, therefore the conduct would still be non-hearsay.

[Now watch the ball closely.] Once the conduct is admitted as nonhearsay, there is a non-hearsay reason to admit the statement, "That's him... Without the statement Alberstrom s conduct is ambiguous. Perhaps he simply lost control of the car because he was weak from losing too much blood, and hit D fortuitously. The statement "That's him... clarifies the conduct by showing that Alberstrom was out to hit D. It would, therefore, be admissible as a statement incident to the conduct.

For more on this razzle-dazzle, see United States v. Day , 591 F.2d 861 (D.C. Cir. 1978), which is the case upon which Problem V-34 is based.

Problem - Ptomaine Poisoning at the Greasy Spoon (423)

The point:

Non-action is treated like action under the federal hearsay rules even though it is much more ambiguous (problems of clarity).

Answer and Analysis:

Objection overruled; not hearsay under FRE 801 (a) because the absence of complaint is conduct which is not intended as an assertion.

This is an example of negative, non-assertive conduct. Under the federal rules, it is not hearsay. Nonetheless, this kind of evidence presents troubling reliability problems that should be analyzed under FRE 401-40.3.

The problem is drawn from Landfield v. Albiani Lunch Co., 268 Mass. 528, discussed in Silver v. New York Central Railroad Company, 329 Mass. 14 (1952)).

Problem - "Thieves Will Out" (427)

This problem is taken from United States v. Day, 591 F.2d 861 (D.C. Cir. 1978), and raises interesting questions about the primary purpose of offering the slip of paper with D's name on it. In Day, the Court admitted the slip of paper with D's name on it to show an association between V and D, but excluded the evidence about V's statement to W to call the police if something happened to him. This seems like a mighty fine distinction. Looking at the evidence as a whole, it seems like the primary purpose in offering the slip of paper and the satement is for the implied statement: "If something happens to me in the next 24 hours, D did it." Conceptually, this is hearsay, for which one would have to find an exception to admit it.

Problem - The Briefcase (427)

This is like the slip of paper in the previous problem, but without the statement and without any action on the part of the "declarant." Is a monogram, or a nameplate, the result of assertive conduct? Is it an assertion? Doesn't a monogram say, "This briefcase belongs to WGM"? If a witness were called to testify that a declarant said, "That briefcase is Bill's," wouldn't that be hearsay? Yet this kind of problem is usually regarded as an authentication/identification problem rather than a hearsay problem because we are not interested in what the monogram says, but who the briefcase belongs to, and the monogram is simply evidence of distinctive characteristics (FRE 901(b)(4) offered to establish the briefcase is what it purports to be. Thus, this problem provides a nice opportunity to explore the connections between hearsay concerns and authentication issues.

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