The law of Evidence HEARSAY
FINAL EXAM QUESTIONS AND
CORRECT ANSWERS GRADED A+
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What is hearsay?
Hearsay is (1) an out-of-court statement, or nonverbal assertive conduct, (2)
that a party is seeking to introduce to prove the truth of the matter asserted.
Because a hearsay statement is not made under oath, in the presence of a
fact finder, or subject to cross examination, it is seen as unreliable and
presumptively inadmissible. However, there are many exceptions to the rule
against admissibility.
Can a hearsay statement be nonverbal?
Yes. A statement for purposes of the hearsay rule can be any oral, written, or
nonverbal conduct the declarant intended to be an assertion. An assertion is
an attempt to express or communicate ideas or information. Almost all oral
and written words are intended to be assertions, as are many nonverbal
actions. A person who shakes his or her head yes or no in response to a
question has made a nonverbal assertion. Likewise, a person who, when
asked, "Do you see the person who attacked you?" points to another person
has made a nonverbal assertion.
,What is the truth of the matter asserted for purposes of the hearsay
rule?
A statement is offered for the truth of the matter asserted if there is a match
between the reason the proponent introduced the statement and the
assertion in the statement itself. If a witness testifies that the declarant said,
“The light was red when the defendant drove through it,” and the proponent
is using the statement to prove that the light was red when the defendant
drove through it, then the statement is being offered for the truth of the
matter asserted. However, if the proponent is offering the statement to
prove that the declarant is not colorblind, then the statement is not being
offered for the truth of the matter asserted.
Are there any out-of-court statements that are not hearsay?
Yes. Certain out-of-court statements are not hearsay because they are not
being introduced to prove the truth of the matter asserted. These include
statements offered:
(1) to prove the fact of an utterance,
(2) for impeachment,
(3) because the statement constitutes a verbal act of legal significance,
(3) to show the effect of the statement on the person hearing or reading it,
(4) to demonstrate the declarant's state of mind, and
,(5) to demonstrate association.
Admission of these statements requires that the court determine, under Rule
403, that the probative value of admitting the statement outweighs the
chance that the jury may interpret the statement as proof of the matter
asserted.
What is a verbal act? Can you give three examples?
A verbal act is a statement that has some independent legal significance, in
that it triggers rights or liabilities. A verbal act is not hearsay because it is
not being offered for the truth of the matter asserted, but rather because of
the effect it had in triggering the legal right or liability, e.g., (1) words of offer
and acceptance in contract formation, (2) words indicating intent to make a
gift, and (3) words offered to prove slander or libel in a defamation case.
A worker who was fired after taking worker's compensation leave brought a
claim for retaliatory discharge. She testified, "While I was on leave, another
employee told me the company was planning to terminate me because I had
taken too much leave." Is this statement hearsay?
Yes. Hearsay is defined as an out-of-court statement offered to prove the
truth of the matter asserted in the statement. Here, the statement was made
outside of court, by someone who is not currently testifying, i.e., the
declarant, and repeated in court by the witness. The worker is offering the
statement to prove that the reason for her termination was that she had
taken too much leave. This is exactly what the statement says, so the
statement is being used to prove the truth of the matter asserted in the
statement.
, The day after a snowstorm P slipped on the sidewalk in front of the D's house
and broke his ankle. After falling, P looked up and noticed a note taped to D's
mailbox. It said, "Please shovel your walk! It has become icy and is
dangerous to pedestrians like me!" P sued the defendant for negligence,
alleging that the defendant did not shovel and salt her sidewalk the day of
the slip. D alleged that the sidewalk was clear on the day of the slip. The
plaintiff sought to introduce the note left on the defendant's mailbox. Is the
note hearsay?
Yes. Hearsay is defined as an out-of-court statement offered to prove the
truth of the matter asserted in the statement. Here, the written statement
was made outside of court, by someone who is not currently testifying, i.e.,
the declarant, and offered as evidence. The statement asserts that there was
ice on the defendant's sidewalk. The plaintiff is offering the statement in
order to prove that there was ice on the defendant's sidewalk. The statement
is being used to prove the truth of the matter asserted in the statement and
is hearsay. Thus, the court should sustain the objection.
Are there any out-of-court statements that, despite meeting the definition of
hearsay, are specifically exempted from the definition?
Yes. These include:
(1) DECLARANT-WITNESS: Certain prior statements (inconsistent, consistent,
prior identification) of a declarant-witness, which are exempted because the
declarant-witness is at trial and able to be cross-examined about the prior
statement; and
FINAL EXAM QUESTIONS AND
CORRECT ANSWERS GRADED A+
FOR A GUARANTEED PASS
What is hearsay?
Hearsay is (1) an out-of-court statement, or nonverbal assertive conduct, (2)
that a party is seeking to introduce to prove the truth of the matter asserted.
Because a hearsay statement is not made under oath, in the presence of a
fact finder, or subject to cross examination, it is seen as unreliable and
presumptively inadmissible. However, there are many exceptions to the rule
against admissibility.
Can a hearsay statement be nonverbal?
Yes. A statement for purposes of the hearsay rule can be any oral, written, or
nonverbal conduct the declarant intended to be an assertion. An assertion is
an attempt to express or communicate ideas or information. Almost all oral
and written words are intended to be assertions, as are many nonverbal
actions. A person who shakes his or her head yes or no in response to a
question has made a nonverbal assertion. Likewise, a person who, when
asked, "Do you see the person who attacked you?" points to another person
has made a nonverbal assertion.
,What is the truth of the matter asserted for purposes of the hearsay
rule?
A statement is offered for the truth of the matter asserted if there is a match
between the reason the proponent introduced the statement and the
assertion in the statement itself. If a witness testifies that the declarant said,
“The light was red when the defendant drove through it,” and the proponent
is using the statement to prove that the light was red when the defendant
drove through it, then the statement is being offered for the truth of the
matter asserted. However, if the proponent is offering the statement to
prove that the declarant is not colorblind, then the statement is not being
offered for the truth of the matter asserted.
Are there any out-of-court statements that are not hearsay?
Yes. Certain out-of-court statements are not hearsay because they are not
being introduced to prove the truth of the matter asserted. These include
statements offered:
(1) to prove the fact of an utterance,
(2) for impeachment,
(3) because the statement constitutes a verbal act of legal significance,
(3) to show the effect of the statement on the person hearing or reading it,
(4) to demonstrate the declarant's state of mind, and
,(5) to demonstrate association.
Admission of these statements requires that the court determine, under Rule
403, that the probative value of admitting the statement outweighs the
chance that the jury may interpret the statement as proof of the matter
asserted.
What is a verbal act? Can you give three examples?
A verbal act is a statement that has some independent legal significance, in
that it triggers rights or liabilities. A verbal act is not hearsay because it is
not being offered for the truth of the matter asserted, but rather because of
the effect it had in triggering the legal right or liability, e.g., (1) words of offer
and acceptance in contract formation, (2) words indicating intent to make a
gift, and (3) words offered to prove slander or libel in a defamation case.
A worker who was fired after taking worker's compensation leave brought a
claim for retaliatory discharge. She testified, "While I was on leave, another
employee told me the company was planning to terminate me because I had
taken too much leave." Is this statement hearsay?
Yes. Hearsay is defined as an out-of-court statement offered to prove the
truth of the matter asserted in the statement. Here, the statement was made
outside of court, by someone who is not currently testifying, i.e., the
declarant, and repeated in court by the witness. The worker is offering the
statement to prove that the reason for her termination was that she had
taken too much leave. This is exactly what the statement says, so the
statement is being used to prove the truth of the matter asserted in the
statement.
, The day after a snowstorm P slipped on the sidewalk in front of the D's house
and broke his ankle. After falling, P looked up and noticed a note taped to D's
mailbox. It said, "Please shovel your walk! It has become icy and is
dangerous to pedestrians like me!" P sued the defendant for negligence,
alleging that the defendant did not shovel and salt her sidewalk the day of
the slip. D alleged that the sidewalk was clear on the day of the slip. The
plaintiff sought to introduce the note left on the defendant's mailbox. Is the
note hearsay?
Yes. Hearsay is defined as an out-of-court statement offered to prove the
truth of the matter asserted in the statement. Here, the written statement
was made outside of court, by someone who is not currently testifying, i.e.,
the declarant, and offered as evidence. The statement asserts that there was
ice on the defendant's sidewalk. The plaintiff is offering the statement in
order to prove that there was ice on the defendant's sidewalk. The statement
is being used to prove the truth of the matter asserted in the statement and
is hearsay. Thus, the court should sustain the objection.
Are there any out-of-court statements that, despite meeting the definition of
hearsay, are specifically exempted from the definition?
Yes. These include:
(1) DECLARANT-WITNESS: Certain prior statements (inconsistent, consistent,
prior identification) of a declarant-witness, which are exempted because the
declarant-witness is at trial and able to be cross-examined about the prior
statement; and
