Chapter 9 Hearsay

Any hearsay statement not specifically covered under FRE 803 or 804 is inadmissible.

False

If the witness's credibility has been attacked, evidence of prior consistent statements made out of court by the witness testifying during the trial is not admissible to prove the truth of the current statement.

False

Indirect assertions that relate to the truth of the matter are generally considered hearsay, in the same manner as direct assertions.

False

Nonverbal conduct can never be hearsay.

False

Since a question is not an assertion, it can never be classified as hearsay.

False

Senator S. Perior's female associates filed a discrimination lawsuit against him. The Senator, in a moment of weakness and while at the Ole Guys' Club admitted to a close friend that "... my past conduct towards my female associate was boorish and stupid, and I vow to do better." During the trial against the Senator, the plaintiff's attorney puts the friend to whom the Senator made the statement on the stand and asks the friend, "What did the Senator say to you regarding this lawsuit?" The Senator's attorney objects. The trial judge should rule that:

The statement is considered "non-hearsay" and is admissible as a statement under the party-opponent rule.

The Senator denied his conduct to his wife by saying "I would never discriminate against the weaker gender." The Senator's attorney (for some strange reason) calls the wife at trial to testify to her husband's statement. The Plaintiff's attorney (for some stranger reason) objects. The trial judge should rule that:

The statement is inadmissible because it is hearsay as the opponent's own statement and does not have an exception that we know about.

A statement by a witness who heard the declarant claim that he could "fly away by flapping his wings" is admissible to prove inebriation.

True

Hearsay evidence, when offered to prove a witness's state of mind, is admissible as nonhearsay.

True

In some states, circumstantial evidence in the form of out-of-court statements is ruled to be non-hearsay if the evidence is offered to create inferences rather than to directly prove the truth of the assertion.

True

Manny, accused of sexual harassing his secretary, told his friend that he needed to learn to keep his hands to himself. His statement is nonhearsay.

True

Testimony by a police officer about statements made to him by an eyewitnesses at the scene of a crime is hearsay.

True

The witness in a burglary case testified at a pretrial hearing under oath and subject to penalty of perjury that he saw the defendant in a yellow satin jumpsuit near the location of the burglary. The victim thought she saw a person who was wearing a yellow satin jumpsuit leaving her house just before she discovered the burglary. At trial, the witness who had previously testified that he saw the defendant in a yellow satin jumpsuit, now states that the person he saw near the location of the burglary was wearing a blue shirt and white jeans. Would the prosecution be able to use the prior statement for its truth and not just for impeachment?

Yes, because the former testimony is not hearsay under the rules. It is inconsistent with the witness's present testimony, and was given under oath at a pretrial hearing.

Defendant bought marijuana from Don Dopehead. Defendant now says that he thought he was buying "thyme" (an herb for cooking). At trial, the prosecution wants to show that the defendant knew or at least thought that the greenish-brown leafy vegetable matter was marijuana. Is the following statement by defendant admissible other than by party admission? "Hey, Don, is this marijuana good?"

Yes, because the statement is offered for such purposes as showing the defendant's state of mind and knowledge.

In a civil auto accident case, the defendant offered his own statement that he made to a by-stander at the accident scene: "The intersection was clear when I entered it." The defendant wants the statement for the truth it asserts. The statement is:

Inadmissible because the statement is hearsay.

The Senator's female associate, while working with him, wrote a card to her best friend. She stated in the card, "Senator S. Perior never allows me to finish a sentence, yet he hangs on the male associates' every word." During the trial, the Plaintiff testified similarly without referring to the card. On cross-examination, the Senator's attorney asked: "You did not tell anyone that the Senator always interrupted you, did you? In fact, you told your other associates that the Senator was very fair in all his dealings? On re-direct examination, the female associate's attorney asks her to identify the card written to her friend and then the attorney asks that the card be admitted as evidence. The trial judge should rule that the card is:

Admissible because the card is offered to rebut the defense attorney's implication that the Plaintiff has recently changed her version of the incident.

Jane, another associate, witnessed the Senator's conduct. Afterwards, Jane called her husband and said: "The Senator always interrupts one of the other female associates, but he never does it to the men." The Plaintiff's attorney calls Jane to testify. He asks Jane: "Please tell the jury what you saw happen between the Senator and the Plaintiff." The judge should rule that Jane's statements are:

Admissible because the question that the Plaintiff's attorney asked will not elicit hearsay testimony.

Assume for this question that Don Dopehead is an unindicted co-conspirator, i.e. he has not been charged yet, but he is part of a conspiracy to distribute drugs with the defendant. Assume further that prior to the defendant's arrest, Don asks him, "Where do you want me to deliver the dope?" The prosecution now offers Don's statement to prove that defendant was part of conspiracy to distribute marijuana. The statement is:

Admissible, because even though it is offered for the truth, it is nonhearsay as an admission of a co-conspirator under the party-opponent rule.

Assume that Don Dopehead above said at the time of sale: "This is good marijuana." At trial, the prosecution offered the out-of-court statement by Don, who is not the defendant, to prove that the substance was marijuana. Is the statement admissible

No, because it is offered for its truth which makes it hearsay, without an exception.