The Hearsay Rule

Perception, memory, narration, sincerity

THE RATIONALE FOR EXCLUDING HEARSAY Recall that the rules of evidence govern conduct in courtrooms. Hearsay is a statement that was not made in the current court proceeding. Furthermore, the hearsay statement is being introduced as evidence that the words within that statement are true. It is important to understand the rationale for the Hearsay Rule—it may help distinguish between what is and is not hearsay in a particular circumstance. The CEC excludes hearsay for several reasons. The primary reason is that it is difficult to determine the reliability of a hearsay statement, which is made outside of court, often without an oath, and then repeated secondhand in court, often by someone else. When a statement is made in court under oath, it is easier for the jury to examine the reliability of that statement. Judges and juries evaluate the reliability or quality of witness testimony using four main components: 1. p_________n 2. m_______y 3. n________n, and 4. s_______y.

Material, why, knowledge, investigation, warning, alive, nature, impeach, state of mind

Assertive and non-assertive conduct exists along a spectrum of conduct. Conduct that is clearly assertive is at one end. These actions are clearly intended to substitute for words. For example, if a person asks willing volunteers for hypnosis to stand up, the act of standing up in that context would clearly be meant as a substitute for the words "I volunteer to be hypnotized." Pure conduct is at the other end of the spectrum. Pure conduct, given particular circumstances, is conduct that clearly does not substitute for words, such as running away from a burning building. In the middle of that spectrum, the inquiry becomes whether the person engaging in that non-verbal conduct intended it to be an assertion or whether the act has independent significance. Determining the Actor's Intent The best way to determine the actor's intent is to ask. Student C above could have raised his hand for a reason other than to answer the professor's question; he might have wanted to ask his own question, for instance. Asking Student C would readily establish whether his conduct was meant to substitute for words. When there is no opportunity to ask the declarant about his intent, then common sense is the next inquiry. We can expect that Student C knows that raising his hand conveys the message that he will answer the professor's question. We can argue that by raising his hand, Student C meant the act as a substitute for saying "I will." Thus, raising his hand constitutes a statement under the CEC. The Intent that Matters The intent that matters is the intent of the person who acted. For instance, a neighbor stands on the sidewalk engaged in a heated conversation with the mail carrier. The neighbor is shifting his weight from one foot to the other, back and forth, back and forth. The neighbor seems to be either (1) impatient with the conversation or (2) urgently in need of a bathroom. His conduct may be a substitute for the assertion, "Finish talking; I'm bored," or "Hurry up, I need to go!" It may also be pure conduct—simply a shifting of his weight. Observers may have their own interpretation of his body language, but what matters is what the neighbor himself intended with his conduct. If he intended the movements to substitute for an assertion, then those movements are assertive conduct implicating the Hearsay Rule. If the neighbor did not intend for his movements to constitute assertions, then those movements are non-assertive conduct and do not implicate the Hearsay Rule. In close cases, examine the factual circumstances to see whether there is an argument that a person intended her conduct to substitute for an assertion. Some factors to consider include whether the conduct was voluntary or involuntary, whether the conduct is commonly associated with a particular message (such as nodding one's head or raising one's hand), or whether the conduct itself accomplishes something (such as walking to a destination, in contrast to wiggling one's fingers). For instance, shivering could be an involuntary reaction to being very cold, whereas pretending to shiver and making your teeth clatter would be voluntary acts. The involuntary acts are not intended as expressions because the actor did not intend to engage in those acts. Voluntary acts may or may not be intended as assertions. The party making the hearsay objection has the burden to show that the conduct was intended as an assertion. Silence as Hearsay Consider also the issue of silence. In general, silence is not interpreted to substitute for an assertion. However, if directly asked to "speak up if everything is not perfect," for example, silence could be interpreted as non-verbal conduct intended to substitute for the assertion that everything is perfect. The surrounding circumstances are useful to help determine whether silence can or should constitute an assertion, but the general rule is that silence, standing alone, will not constitute an assertion in a particular situation.

Form, where, why

Essentially, you must answer three questions: what, where, and why: 1. What is the f___m of the evidence? It must be a statement as defined under CEC 225. 2. W____e was the statement originally made? If it occurred anywhere other than in the current proceeding, it could be hearsay. 3. Finally, w__y is the evidence being offered? If the reason is to prove that its content is true, then the statement can be hearsay.

Not hearsay, way the evidence is offered, exception

It is crucially important to determine whether evidence meets the criteria described above—after all, the Hearsay Rule is not implicated if the evidence is not hearsay in the first place. The rule in CEC 1200(b) simply states that hearsay is not admissible unless an exception applies. This chapter also explains the rationale behind the Hearsay Rule. Knowing the reason for the rule makes applying it (and its exceptions) much easier. Basically, statements that fit the hearsay definition are not as reliable as live testimony (statements made in person, under oath, in a court of law). As you undoubtedly know from everyday life, information gets less and less reliable as it passes from person to person. Finally, this chapter introduces methods of admitting evidence that seem to meet the definition of hearsay. Those methods include: • *showing* that the evidence really does not fit the definition and is n__t h_____y; • *changing* the w__y t__e e______e i_ o______d so that it no longer meets the hearsay definition; • or *finding* an e_______n to the Hearsay Rule that will apply. The CEC provides over 60 exceptions to the Hearsay Rule. (These and other hearsay issues are discussed in Chapters 6, 7, and 8.)

Verbal act that is material under the substantive law or a legally operative fact, verbal acts include statements that are an element of a cause of action or criminal charge

Page 114 *To prove that facts that are material under the substantive law (M)* One non-truth purpose that commonly arises is to prove a v____l a_t t____t i__ m_______l u_____r t__e s_________e l__w o__ __ l_______y o_________e f___t. Some professors refer to this as proving "verbal acts". Verbal acts are words that have independent legal significance or meaning under the substantive law, e.g., tort, contract or criminal law. V______l a___s i_______e s_________s t____t a__e a__ e_______t o__ __ c_____e o__ a______n o__ c_______l c_____e. This doctrine comes up in contract cases, defamation cases, illegal betting or gambling cases, solicitation and conspiracy case, extortion cases and others. For example, in a breach of contract case, an element of the cause of action is proving the existence of the contract. One of the fan and said, "I excepted contract terms", the defendant engage in a verbal act that is material under substantive contract law. At trial, the plaintiff may want to testify that this is what the defendant said out of court. The verbal act is not being offered to prove that when the defendant said that he excepted the contract offer, who is speaking truthfully, but rather to show that his words constitute of the active excepting the contract offer. Similarly, and a criminal trial for conspiracy, and element of a conspiracy is to prove that the parties agreed to perform an illegal act or illegal act in an illegal manner. When the defendant said, "I agreed to help you rob a bank,", the defendant engaged in a verbal act that is legally operative under the substantive criminal law. If the prosecution witness repeats the dependence out-of-court statement, it can be offered for a non-truth purpose: to prove that he engaged in the verbal act of agreeing to join a conspiracy. The verbal act is not being offered to prove the truth of the matter asserted, but, rather, to prove the conduct that satisfies the element of a cause of action or affirmative defense under the substantive law. This use also arises in disputes over gifts. If a stranger says, "I'm giving you this Bentley. Here are the keys. Enjoy it and drive safely." But later sues for non-payment of the purchase price of the Bentley, and the stranger statement that it was a gift is relevant as substantive proof that nothing is owed on the car because it was a gift. The substantive law does not care about the exact words of the strangest specific statement, Just whether words of gifting were expressed. If so, the item as a gift, and the purchase price it need not be paid under the substantive law.

Material, why, knowledge, investigation, warning, given, alive, nature, impeach, state of mind

Page 114 Common non-truth purposes: A number of non-truth purposes defeat the third element of hearsay. Evidence professors and textbooks tend to focus on some or all of the nine identified below. Those nine common non-truth purposes are those that have independent significance aside from communication. M: to prove verbal acts that are m______l under the substantive law Y: to explain w__y a particular course of action was taken K: to prove possession of relevant k________e I: to prove that further i_________n was warranted W: to prove that a w_______g was given A: to prove that the declarant was conscious or a_____e N: to prove the n_____e of a place of business I: to i_________h a witness by disapproving assertions testified to by him S: to prove with the the declarant's s_____e o__ m____d.

Subsequent conduct or effect on the listener

Page 115 *To explain why: subsequent contact/effect on listener (Y)* A second, non-truth purpose is to explain s__________t c_______t o__ e_____t o__ t__e l________r. An assertion can be offered into evidence to show that the person who heard the out-of- court statement reacted in a certain way to that statement. For instance, if a student tells her roommate "it is raining very hard outside," that roommate may refuse to leave the apartment until she can find her raincoat and umbrella. If a party needed to prove that the roommate left the apartment later than usual, she can offer the student's statement as circumstantial evidence of why it took her roommate so long to leave the apartment. Another common example of this non-truth purpose is when highway patrol officers explain why they decided to stop and search a particular car. If the officer received a radio report to "be on the lookout for a white Mercedes with a suspected car thief driving", then that assertion would provide circumstantial evidence of why the officer subsequently detained and searched a white Mercedes and it's driver. If the officer's motive for detaining the Mercedes is relevant to the litigation, then the truth of the actual radio dispatch does not matter. What matters is that, because the police officer heard that statement, he engaged in the particular subsequent conduct of pulling over and searching a white Mercedes.

To prove that further investigation was required

Page 116 *T__ p____e t___t f_____r i_________n w__s r______d (I)* A fourth and fairly common nonhearsay purpose that arises in litigation is to prove further action should have been taken. For example, in the suspected car thief example above, imagine that the police officer calls in the license plate number of the white Mercedes and is told "it matches the plate for a Mercedes reported stolen just an hour ago," but the officer does not pull the Mercedes over. In a later case, where the officer is being reprimanded for not acting, the statement, that the plates matched, could be nonhearsay if used to prove that the officer had a reason to take further action. If, however, the statement was offered to prove that the license plates actually did match, the purpose would be to prove the truth of the matter asserted and then it would be hearsay.

Simply using the statement as circumstantial evidence of the declarant's alleged knowledge of a condition, without proving the truth of that condition, does not violate to the Hearsay Rule

Page 116 *To prove relevant knowledge (K)* A third and relatively common non-truth purpose is to prove relevant knowledge. This non-truth purpose is useful to prove that the declarant knew something but not to prove whether that something is accurately true. For example, consider a statement by the declarant that the bank has three emergency exits that trigger the 'sound' alarm and one exit from the teller booth that triggers a 'silent' alarm. This statement proves the declarant's knowledge of the layout of the bank and the alarm triggers and it can be used as circumstantial evidence that he was planning to rob the bank. It does not matter whether the bank truly had three emergency exits, and one, two or three silent or sound alarms. S______y u_____g t_e s_________t a__ c_________l e_______e o_ t__e d________'s a_______d k_________e o__ _ c________n, w_____t p______g t__e t____h o__ t____t c________n, d_____s n__t v_______e t__e H______y R____e. It may turn out that the assertion is false, which will be circumstantial evidence that the declarant was only bluffing, did not really plan on robbing the bank and never did any reconnaissance. *Nevertheless, this assertion will be nonhearsay if it is offered for the purpose of proving that the declarant's knowledge*.

a warning statement about a dangerous condition can prove that the listener was on notice of the dangerous condition

Page 116 *To prove that a warning was given (W)* A fifth non-truth purpose that is often tested by evidence professors is to prove that a warning was given. For example, __ w______g s_________t a____t __ d_________s c_______n c__n p____e t___t t__e l________r w_s o__ n______e o__ t__e d_________s c________: "Watch out! I broke a glass on the floor and there are shards everywhere," is a warning statement about broken glass. It would be hearsay if the statement were used to prove it the declarant broke the glass or that there were shards everywhere. Instead, however, a party may want to use that statement to prove that it was the plaintiff's fault that she sliced her Page 117 bare foot on broken glass. The argument is that if the plaintiff heard the warning that there was broken glass on the floor but walked barefoot through the broken glass anyway, then she caused her own injury. Where the substance of the warning is not offered to prove the existence of the condition warned about, but rather to prove that the warning was given, it will be allowed as nonhearsay. This is a situation where the opposing party should be sure to ask for a limiting instruction. The instruction should ask that the jurors limit their use of the statement to prove that there was a warning, and not to prove who broke the glass or that there were glass shards everywhere.

if a statement is used to prove that the declarant was conscious or alive, because only people who are alive can talk, then the statement is not being offered to prove the truth of its assertion

Page 117 *to prove conscious or alive (A)* A sixth non-truth purpose is to prove that the declarant was conscious or alive. The statement "I'm still alive" would technically constitute hearsay IF said by a person outside of court and offered to prove that the person was alive when making the statement. However, i__ __ s________t i__ u____d t__ p_____e t____t t__e d________t w_s c_______s o__ a____e, b______e o____y p_____e w__o a__e a_____e c__n t___k, t___n t__e s________t i__ n__t b_____g o_______d t__ p____e t__e t_____h o__ i___s a________n. In this situation, the content of the statement is completely irrelevant. If the person had said "I am a dog" or "my name is Mudd", it would not matter one iota. The mere fact that the person spoke means that she is alive. When the substance of the matter asserted is not important for the proof, the statement can be offered for a non-truth purpose and will be admissible as non-hearsay.

Offered for a non-truth purpose, as circumstantial, indirect evidence

Page 119 of 519 Mike is on trial for kidnapping and murder Nancy. My client that Nancy asked to come along with him on a hike, so she was not taken against your will. Also claims that she slipped whilst hiking in that when he reached out to grab it, he pushed his hand away and fell to her death. The prosecution seeks to admit a statement made by Nancy shortly before death in which she stated "I am really afraid of Mike because of he has violent temper." Ikes defense counsel of checks to the admission of Nancy's statement on the grounds of hearsay. How should the prosecution respond, how should the court rule and why? Explanation: Nancy's statement that she was afraid of Mike because of his violent temper is the statement of her state of mind. If the prosecutor is offering the statement to prove that Nancy had a fear of Mike and it is direct evidence of Nancy's state of mind and would be hearsay. On the other hand, the prosecution may choose to offer the evidence of circumstantial evidence that Nancy would not voluntarily go on a hike with Mike and that's her presents with him was it likely involuntary. If offered for that purpose, then the statement would be admissible as not hearsay because it would not be offered for the truth of the matter asserted. The court should admit the statement is not on your side because it is being o_______d f__r __ n__n-t____h p_______e: a__ c__________l, i_______t e________e of Nancy's state of mind regarding going places with Mike.

The mere fact that the statement was made provides a motive for the murder

Page 120 of 519 Evan is on trial for the murder of Frank. A few days before the murder, Frank told his wife Georgia, "Evan has been blackmailing me." Georgia took Frank to the police station to file a report about the blackmail. Later that evening, Georgia saw Evan and told him, "the police are going to stop you from blackmailing Frank." At trial, the prosecution seeks to offer George's testimony that Frank told Georgia that Evan was blackmailing him. Evan's defense attorney objects on the grounds of hearsay. What arguments should the prosecution make in response, how should the court rule and why? Explanation: The prosecution should respond that Frank's out-of-court statement is not being offered for the truth of the matter asserted (to establish that Evan actually did blackmail him), but, rather, to show the fact that the accusation was made and thus provided a motive for Evan to kill Frank. Evan's defense attorney might respond that this statement is useful only to prove its truth because if Evan was not a blackmailer, then the false accusation would not give him a motive to kill his accuser. Therefore the statement is relevant to explain Evan's conduct only if it is considered to be true. The court should overrule the defense's objection and admit the statement because it does not matter whether the statement is true. T__e m____e f____t t___t t__e s________t w__s m____e p_______s __ m______e f__r t__e m______r. and demonstrates why Evan would be angry and perhaps resort to violence. The statement should be admitted as non-hearsay because it is offered for a non-truth purpose. Evan should ask for a limiting instruction to make sure that the jury considers the statement only for its non-truth purpose.

The statement was not offered to show that Robert was actually getting weak but merely that he had a motive to participate in yet another criminal offense to prove his manhood

Page 121 or 519 Quentin and Robert are on trial for burglary and felony murder. The defendants attempted to steal drugs from the home of one dealer, but Robert was shot as they tried to escape. They hid at Quentin's house for a few hours whilst Quentin's wife dressed Robert's wound. During that time, Quentin accused Robert of "getting week". Robert responded that "I'm not getting weak" and said "if you have something else for us to do, I'll show you that I'm not weak." Quentin then told Robert that he had another dealer in mind. They went to the home of the second drug dealer and shot him before he could reach for his weapon. The prosecution sought to offer the testimony of Quentin's wife that she overheard their statements. Robert objected to the statement as inadmissible hearsay. How should the prosecution respond? How should the court rule? The prosecution should respond by arguing that statement Quentin's wife overheard about getting week is not being offered for the truth of the matter asserted would rather to show a motive for the later robbery and murder. T__e s_________t w__s n__t o________d t__ s____w t____t R_____t w__s a______y g_____g w____k b__t m_____y t___t h__ h__d __ m______e t__ p________e i__ y__t a______r c________l o_______e t__ p_____e h__s m_______d. The court should overrule the hearsay objection and admit the statement as non-hearsay.

Statement, outside hearing, offered to prove what the statement asserts is true

The Hearsay Rule, along with its numerous exceptions, is a significant portion of the evidence rules you will be studying. Hearsay is evidence that meets the following three requirements: 1. it is a s________t, 2. made o______e of this court's h_______g 3. that is o_______d t__ p_____e w____t t__e s_________t a_______s i__ t____e. For instance, suppose someone in the hallway outside the courtroom says, "The judge's chambers are freezing." If you use that statement as evidence in the courtroom that the judge's chambers are below 32 degrees, then you are using the statement to prove that what it asserts (" the judge's chambers are freezing") is true (that the temperature in the judge's chambers is actually freezing). (This analysis is more fully discussed later in the chapter.)

Cross-examination is an important way to test the strength of these four components of testimony reliability. If the hearsay declarant does not appear in court as a witness, then there is no opportunity to cross-examine the hearsay declarant to test his perception, memory, recollection, sincerity.

The perception component is what a witness knows based on her sense of sight, hearing, touch, taste, and smell. What did the witness see, hear, feel, taste, or smell? When the witness testifies from her own perceptions, the opposing counsel can effectively cross-examine the witness about her senses and her perceptions to uncover inconsistencies and outright falsehoods. Conversely, if a witness testifies from secondhand knowledge and did not perceive the information herself, she will not be able to provide answers to all of the questions needed to evaluate the credibility of her testimony. Thus courts prefer to get the testimony directly from the person with firsthand knowledge. (The personal knowledge requirement and competency issues are discussed in more detail in Chapter 9.) The memory component is closely related to perception. This factor asks whether the witness accurately remembers what happened—what he saw, heard, felt, tasted, or smelled. However, with secondhand information, the witness has a memory only of getting the information from someone who perceived the events, not a memory of his own perceptions. Courts prefer that the actual declarant—the person who made the original statement—be a witness at trial so that the opposing party may cross-examine the declarant about how she remembers the actual course of events. The narration component is based on the witness's ability to tell the story without making errors in the recitation. Consider whether the words being spoken convey the message that the speaker intended to convey. For instance, some people have trouble repeating a story; they may mix up the names or characters in the story or describe events out of order. Suppose a person says, "This guy ran into a bank. He pulled out his gun and started shooting. The police were already there." You may wonder whether the man was a police officer and whether the shooting was part of a robbery or part of law enforcement efforts. These narration errors impact the reliability of the story. The jurors would need more information to understand what actually happened at the bank, and thus this witness would have a low score on the narration component. Finally, the sincerity component is based on the witness's oath to tell the truth, the ability to examine the demeanor of the witness, and the use of cross-examination. Hearsay statements usually are not made under oath. When a witness on the stand repeats what the declarant said outside of court, that hearsay statement was not originally made under an oath to tell the truth (with the threat of perjury). If a witness is in court, under oath, and facing the judge, jury, and parties, courts have more confidence in the reliability of the witness's testimony. In addition, the judge and jury can examine the witness's demeanor to see how she acts and looks when answering questions, which provides some additional evidence of the witness's credibility (discussed in Chapter 9). A witness who looks furtively around and hesitates before answering a question appears less credible than one who answers forthrightly, making eye contact with the lawyer as she responds. C____s-e__________n i__ a__ i__________t w__y t__ t____t t__e s______h o__ t____e f____r c_________s i__ t________y r__________y. I_ t__e h______y d_________t d___s n__t a______r i__ c_____t a__ __ w______s, t____n t______e i__ n__ o_________y t_ c_____s-e_______e t__e h______y d________t t__ t____t h_s p________n, m______y, r___________n, s_________y.

Use of words to convey information

The usual definition of the word statement is the u__e o__ w____s t__ c______y i__________n. The California evidence code recognizes that both words, written or spoken, constitute statements. Spoken words can be repeated by another person, and written statements can be brought to court as written notes, documents, books, reports, and even statements on digital and electronic devices.