Instructions
For the following questions, assume that if a
statement is hearsay, it’s not admissible.
1
O.J. Simpson case
•
•
•
•
Nicole & Ron were murdered at her place
Later, police searched OJ’s Brentwood estate.
Det. Fuhrman found a bloody glove in the bushes.
Defense: frame-up
3
Detective Fuhrman testified that he talked to house
guest Kato Kaelin at the Brentwood estate. Kato said, “at
about 10 PM, I heard thumping on the wall outside my
room.” Fuhrman went to that wall and found a bloody glove
in the bushes.
Suppose there had been a hearsay objection to the
statement by Kato. Would the statement be admissible?
31%
Cl
ue
le
ss
14%
No
Yes
No
Clueless
Ye
s
1.
2.
3.
56%
4
Why isn’t Kato’s statement hearsay?
5.
he
...
of
t
pi
ng
...
th
an
on
e
..
3%
M
or
e
h
at
o
If
K
th
um
st
at
e
’s
ea
rd
at
o
K
Fu
h
rm
an
’s
...
0%
C
lu
el
es
s
9%
ho
w
s
4.
23%
It
s
3.
66%
xp
la
in
s
2.
It explains Fuhrman’s
subsequent conduct
It shows Kato’s state of
mind
If Kato heard thumping,
it is more likely OJ
returned to Brentwood.
More than one of the
above.
Clueless
It
e
1.
5
If a statement is inadmissible hearsay when
used for one purpose, and not hearsay when used
for another, there is a Rule 403 issue.
The statement’s probative value for the
permitted purpose has to be weighed against the
danger it will be used for the forbidden purpose.
6
Hypo. A police officer testifies she got a call from the
dispatcher, who said that there was a robbery in progress in
the Jug Shop. She then went to the Jug Shop and entered it
with her service revolver drawn.
The testimony about the dispatcher’s statement is -94%
0%
Cl
ue
le
ss
on
l..
is
si
bl
e
Ad
m
0%
.
In
ad
m
is
si
bl
e.
6%
is
si
bl
e.
3.
4.
Admissible.
Admissible only if
redacted.
Inadmissible.
Clueless
Ad
m
1.
2.
7
Hypo. A police officer testifies “the dispatcher told me
there was a hit and run at Larkin and Turk during which a
red SUV hit a pedestrian.” The officer went to the scene and
measured the skid marks. Defendant, the owner of a red
SUV, was arrested later in the week. He claims that he was
driving his SUV in another city at the time of the hit and run.
The evidence is --
49% 46%
A
dm
0%
C
lu
el
es
s.
is
si
bl
e
on
l..
.
In
ad
m
is
si
bl
e.
6%
is
si
bl
e.
3.
4.
Admissible.
Admissible only if
redacted.
Inadmissible.
Clueless.
A
dm
1.
2.
8
Hypo. A police officer testifies “the dispatcher told me
there was a robbery in progress. As a result, I drove to the
Jug Shop. I saw two men who met the dispatcher’s
description running down the street. I chased them and took
them into custody.” Admissible?
73%
17%
10%
A
dm
C
lu
el
es
s
is
si
bl
e
on
l..
.
In
ad
m
is
si
bl
e.
0%
is
si
bl
e.
3.
4.
Admissible.
Admissible only if
redacted.
Inadmissible.
Clueless
A
dm
1.
2.
9
United States v. Hernandez, p. 214
Fifth Circuit, 1985
Testimony of DEA agent:
“We received a referral by the U.S. Customs as
Hernandez being a drug smuggler.” (top of p.215)
10
On appeal in Hernandez, the government argued that
the statement by U.S. Customs was admissible to show --
C
lu
el
es
s
...
ef
en
da
nt
n.
..
0%
Th
at
d
m
ot
iv
at
io
...
4.
8%
0%
Th
e
3.
92%
ef
en
da
nt
2.
That defendant was a
drug smuggler
The motivation for the
investigation
That defendant’s
testimony was false
(impeachment)
Clueless
Th
at
d
1.
11
Why wasn’t the statement by Customs admissible to show
the motivation for the investigation?
12
Suppose that Mr. Hernandez had claimed that the
agent, Ana Saulnier, was “out to get me” because of a high
school vendetta. In that case, the statement from U.S.
Customs would have been --
81%
7% 11%
w
In
i t.
ad
..
m
is
si
bl
e.
...
C
lu
el
es
s.
0%
is
si
bl
e
if
...
A
dm
A
dm
is
si
bl
e
w
i t.
..
0%
is
si
bl
e
4.
5.
Admissible without limit.
Admissible if redacted.
Admissible with a
limiting instruction.
Inadmissible.
Clueless.
A
dm
1.
2.
3.
14
If the customs statement had been admissible to
rebut the vendetta claim, would there still have been error in
the Hernandez trial?
84%
4%
C
lu
el
es
s
12%
N
o
Yes
No
Clueless
Ye
s
1.
2.
3.
15
The error would have been --
0%
C
lu
el
es
s
j..
.
th
e
In
vi
tin
g
itt
in
g
ch
ar
..
he
ar
..
O
th
er
6%
.
.
6%
A
dm
4.
5.
19%
in
g
3.
69%
itt
2.
Admitting hearsay
evidence
Admitting character
evidence
Inviting the jury to use
the statement for its
truth
Other
Clueless
A
dm
1.
16
United States v. Zenni, p. 216
E.D. Ky. 1980
Case discussed in Zenni (p. 217):
Wright v. Tatham
Exchequer Chamber, 1837
18
Wright v. Tatham
Exchequer Chamber, 1837
Here is one example of the statements offered:
A younger cousin wrote a letter to his older cousin
describing his travels in America. The letter said,
for example, that “there’s a plague here in
Alexandria. People are dying by the hundreds.”
The letter was offered to prove that the older
cousin was mentally competent.
19
Why is the letter saying “there’s a plague in
Alexandria” relevant?
20
Hearsay dangers review
Hearsay evidence is considered dangerous
because the out-of-court declarant’s “credibility”
has not been tested by cross-examination in
court.
21
The elements of “credibility” are --
•
•
•
•
Sincerity
Clarity
Memory
Perception, judgment
22
Hearsay triangle, p. 185
B
(belief of declarant)
A
(act/statement)
C
(conclusion)
23
Hearsay triangle
B
Clarity
Sincerity
A
C
24
Hearsay triangle
B
Clarity
Sincerity
A
Memory
Perception, judgment
C
25
The use of the younger cousin’s letter as evidence of the
older cousin’s competence raised “hearsay dangers” in the
sense of requiring reliance on the declarant’s credibility.
93%
Fa
ls
e
7%
Tr
ue
1. True
2. False
26
Now, apply the definition of hearsay contained in the Federal
Rules of Evidence. Would the letter saying “there’s a plague
in Alexandria” be hearsay when offered to prove the
decedent’s mental competence?
1. Yes
2. No
3. Clueless
69%
31%
Cl
ue
le
ss
o
N
Ye
s
0%
27
The letter is not offered for its truth because --
90%
0%
Cl
ue
le
ss
...
le
ga
lly
6%
It
i
s
st
...
0%
ci
rc
um
s
It
i
It
s
ho
w
s
ef
fe
c.
..
3%
O
th
er
1. It shows effect on hearer
2. It is circumstantial
evidence of declarant’s
state of mind
3. It is legally operative
language
4. Other
5. Clueless
28
It is easier to argue that the “there’s a plague in Alexandria”
letter is hearsay if one is applying the --
1. Assertion-centered or
“not for truth” definition
2. Declarant-centered or
“hearsay dangers”
definition
3. It doesn’t matter
67%
26%
.
.
It
d
oe
sn
’
tm
at
..
en
t..
De
cl
ar
an
t-c
As
se
r
tio
nce
nt
..
.
7%
29
Forget about the hearsay rule. As a matter of common
sense, which letter from the younger cousin would be better
evidence that Mr. Marsden was mentally competent?
89%
1. A letter to Mr. Marsden
saying “there’s a plague
in Alexandria.”
2. A letter to someone else
saying “Mr. Marsden is
mentally competent.”
3. Clueless
11%
0%
Cl
ue
le
ss
le
tte
rt
o
A
A
le
tte
rt
o
M
...
s.
..
0%
30
The Advisory Committee says that “verbal conduct
which is assertive but offered as a basis for inferring
something other than the matter asserted” is not hearsay.
See the quote set forth on p. 220 of the Zenni case.
31
Please give your opinion. What is the strongest policy
argument in favor of saying that “verbal conduct which is
assertive but offered as a basis for inferring something other
than the matter asserted” is not hearsay?
no
tm
is
is
no
tm
...
0%
...
0%
Th
er
e
It
is
..
da
ng
er
of
.
Th
e
0%
cl
ea
rw
...
0%
Th
er
e
1. The danger of relying on
declarant’s sincerity is reduced.
2. It is clear what the declarant
thinks about the fact of
consequence
3. There is not much reliance on
declarant’s perception
4. There is not much much reliance
on declarant’s memory
32
In the language quoted on p. 220, the Advisory Committee
explained the basis for its decision to treat this category
of statement as not being hearsay.
In an elliptical discussion, the Committee indicated that
when “verbal conduct that is assertive but offered as a
basis for inferring something other than the matter
asserted” is received in evidence, then the danger of
insincerity is absent and other hearsay dangers are
“minimal.”
33
In the Zenni case itself, the issue was whether calls to a
bookie placing bets (e.g., “Put $2 to win on Paul Revere”)
were admissible. The Zenni court held that they were
admissible.
1. True
2. False
0%
Fa
ls
e
Tr
ue
0%
34
According to Zenni, the statement “Put $2 to win
on Paul Revere” is --
0%
Ad
m
is
si
bl
e
as
...
be
c.
..
0%
is
si
bl
e
be
c.
..
0%
is
si
bl
e
Ad
m
Ad
m
is
si
bl
e
un
d.
..
0%
Ad
m
1. Admissible under an exception to
the hearsay rule
2. Admissible because there are no
hearsay dangers
3. Admissible because it is a direction,
not an assertion
4. Admissible as legally operative
language.
35
Hypo. A storekeeper points to Buzzy and says,
“arrest that thief!” Her statement is offered to show
that Buzzy is a thief. The evidence is --
1. Hearsay.
2. Not hearsay
because it is a
direction, not an
assertion.
0%
No
th
ea
rs
ay
be
ca
us
e
i..
.
He
ar
sa
y.
0%
36
[Refer to Regina v. Kearley (1992), noted on pp.
221.]
In England at the time of the Kearley case, the bets
in Zenni would be considered hearsay.
1. True
2. False
3. How would I know?
0%
0%
Ho
w
w
ou
ld
Ik
n.
..
Fa
ls
e
Tr
ue
0%
37
Side note: Kearley has been superseded by the
Criminal Justice Act of 2003.
38
NONVERBAL CONDUCT UNDER THE FEDERAL RULES
Verbal conduct is oral or written conduct using words.
Nonverbal conduct is wordless conduct, like pointing a finger
or driving a car.
►
39
NONVERBAL CONDUCT UNDER THE FEDERAL RULES
Verbal conduct is oral or written conduct using words.
Nonverbal conduct is wordless conduct, like pointing a finger
or driving a car.
Nonverbal conduct must be a “statement” in order to be
hearsay.
40
NONVERBAL CONDUCT UNDER THE FEDERAL RULES
Verbal conduct is oral or written conduct using words.
Nonverbal conduct is wordless conduct, like pointing a finger
or driving a car.
Nonverbal conduct must be a “statement” in order to be
hearsay.
Rule 801(a)(restyled) defines the concept of “statement” by
saying that:
41
NONVERBAL CONDUCT UNDER THE FEDERAL RULES
Verbal conduct is oral or written conduct using words.
Nonverbal conduct is wordless conduct, like pointing a finger
or driving a car.
Under Rule 801(c), hearsay is an out-of-court statement
offered to prove the truth of the matter asserted.
Rule 801(a)(restyled) defines the concept of “statement” by
saying that:
“’Statement’” means a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as
an assertion.”
42
NONVERBAL CONDUCT UNDER THE FEDERAL RULES
Verbal conduct is oral or written conduct using words.
Nonverbal conduct is wordless conduct, like pointing a finger
or driving a car.
Under Rule 801(c), hearsay is an out-of-court statement
offered to prove the truth of the matter asserted.
Rule 801(a)(restyled) defines the concept of “statement” by
saying that:
“’Statement’” means a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as
an assertion.”
43
The California Evidence Code has the same
approach to nonverbal conduct as the Federal Rules of
Evidence. CEC §§ 225, 1200.
44
For the following hypos, refer to Fed. R. Evid. 801(a).
45
Hypo. In class, a teacher said “If you started the fire, raise
your hand and we’ll try to help you.” Becky raised her hand.
Later Buzzy is charged with starting the fire. He offers
evidence that Becky raised her hand in response to the
teacher. His purpose is to show that Becky started the fire.
Hearsay ?
1. Yes
2. No
h
0%
0%
46
Suppose someone died in the school fire that Buzzy is
accused of setting. He wants to put in evidence that the
morning after the victim died, Becky, the other suspect, ran
away from home.
Hearsay ?
1. Yes
2. No
h
0%
0%
47
Hearsay in the News
AP Sept. 6, 2012:
JOLIET, Ill. - Drew Peterson — the crass former Illinois
police officer who gained notoriety after his muchyounger wife vanished in 2007 — was convicted
Thursday of murdering a previous wife in a potentially
precedent-setting case centered on secondhand hearsay
statements.
48
AP, Sept. 9, 2012:
JOLIET, Ill. (AP) — The final juror to agree to convict
Drew Peterson of murder in the death of his ex-wife says
he "barely slept" one night during the proceedings
because the same nagging questions kept popping into
his head.
Even after joining fellow members of the panel by
casting the last vote for guilty, Ron Supalo remains
troubled by the prosecution's reliance on hearsay,
statements not based on a witness' direct knowledge.
49
AP Sept. 9, 2012:
Supalo [the juror who was the last holdout] said he had
some doubts about the credibility of Stacy Peterson's
statements to the Rev. Neil Schori.
During the trial, Schori testified that Stacy Peterson told
him weeks before she went missing that her husband got
up from bed and left the house about the time of Savio's
death and then returned to stuff women's clothing in their
washing machine. Peterson also coached his wife for
hours on how to lie to police, Schori told jurors.
50
The hearsay statements were admitted under Illinois
forfeiture doctrine.
The comparable provision in federal law is Fed. R. Evid.
804 (b)(5), which creates an exception to the hearsay
rule for
“A statement offered against the party that wrongfully caused -or acquiesced in wrongfully causing -- the declarant's
unavailability in order to prevent the declarant from attending
or testifying.”
51
Hypo. The proponent offers, as evidence of the
seaworthiness of a ship, testimony that a sea captain, after
inspecting the ship, took a voyage on it with his family.
Hearsay?
1. Yes
2. No
h
0%
0%
52
Question. In May, 2003, Canada’s Prime Minister Jean
Chrétien ate a very public lunch of Alberta beef in a bid to
combat a mad-cow scare. Is his action hearsay if offered to
show that Canadian beef was safe?
1. Yes
2. No
0%
0%
53
Hypo. On a battlefield, a paramedic covered a body with a
sheet from head to toe. This action is offered to show that
the person was dead. Hearsay?
1. Yes
2. No
0%
0%
54
Hypo. Shortly before Monica Lewinsky was scheduled to
testify before the grand jury in the Clinton perjury case,
President Clinton appeared at a photo op wearing a necktie
Monica had given him as a love gift. Is wearing the necktie a
statement? If so, is it hearsay?
1. It is not a statement and
is not hearsay
2. It is a statement, but is
not hearsay
3. It is a hearsay statement.
a
a
st
at
em
.
st
..
no
ta
0%
he
ar
sa
...
0%
...
0%
55
Flushing hypo
1. Hearsay
2. Not hearsay
3. It depends on what
it’s being offered to
prove.
0%
...
n
ep
en
ds
o
It
d
No
th
ea
rs
a
y
He
ar
sa
0%
y
0%
56
Wilson v. Clancy, p. 207
D. Md., 2007
59
Wilson v. Clancy, p. 207, ruled that testimony about the
decedent’s silence was --
1. Inadmissible hearsay
2. Hearsay, but admissible
3. Not hearsay and
admissible
4. Not hearsay, but
nonetheless inadmissible
0%
0%
0%
In
ad
m
is
si
bl
e
h.
..
He
ar
sa
y,
bu
ta
...
No
th
ea
rs
ay
an
...
No
th
ea
rs
ay
,b
...
0%
60
Is the silence evidence in the Silver case, described on p.
209, better evidence than the silence evidence in the Clancy
case?
1. Yes
2. No
.
0%
...
Ye
s
0%
61
Would silence, when used to show a belief of the declarant,
be hearsay under the declarant-centered approach?
1. Yes
2. No.
0%
No
.
Ye
s
0%
62
Can silence ever be hearsay under the Federal Rules of
Evidence?
1. Yes
2. No
o
0%
N
Ye
s
0%
63
Hypo. To show that Buzzy and Wanda knew each other,
police offer an address book seized from Buzzy. It has an
entry saying “Wanda 440-3298.” Hearsay?
1. Yes
2. No
0%
0%
66
Hypo. To show that Buzzy’s premises were used for the
sale of drugs, police offer a spreadsheet, seized from
Buzzy’s computer, that says “Beany 3K $6000.” (A police
expert explains that “3K” means 3 kilos and that this type of
pay-owe sheet is frequently found on premises where drugs
are sold.) Is the statement found on Buzzy’s spreadsheet
hearsay?
1. Yes
2. No
0%
0%
67
Hypo. To show that a briefcase containing cocaine
belonged to Bill Snow, police offer evidence that the
briefcase had a nametag on it that read “Bill Snow.”
Hearsay?
1. Yes
2. No
0%
0%
68
United States v. Jaramillo-Suarez, p. 209
Ninth Circuit, 1991
Under this case, a pay-owe sheet would be inadmissible if
offered to show that a customer paid a certain amount for
drugs, but admissible if offered to show that the premises
were used for the sale of drugs.
1. True
2. False
0%
0%
e
e
69
United States v. Rhodes, p. 211
Ft. McNair, 1958
This is not a judicial opinion, but a description of events
in a court-martial tried by my co-author, the late Jon
Waltz.
70
In the Rhodes case, should the statements contained in the
film in the hollowed-out bolt have been admitted?
1. Yes.
2. Yes, if redacted.
3. No.
No
.
0%
fr
ed
ac
t
...
0%
Ye
s,
i
Ye
s.
0%
71
United States v. Brown, p. 213
5th Circuit, 1977
72
United States v. Brown, p. 213
5th Circuit, 1977
In Brown, the majority noted that the record showed that
Ms. Peacock must have gotten her proof that deductions
were overstated through conversations with the
taxpayers who had been audited (p. 214).
73
Suppose that it’s not clear where a witness got her
information about an occurrence. She could have perceived
it herself, or she could have heard about it from someone
else. Her testimony about the occurrence is -1. Inadmissible unless
further foundation is laid
for her testimony.
2. Admissible, subject to
cross-examination about
the source of her
information.
is
si
bl
e,
s
u.
..
0%
Ad
m
In
ad
m
is
si
bl
e
u.
..
0%
74
Hypo. An in-court witness testifies that she knows Buzzy and
has seen his tattoo. Without further preliminaries, she is
asked “Where did Buzzy get his tattoo?” The question is --
0%
bj
ec
tio
na
...
na
bl
e
O
bj
ec
tio
na
bl
e
O
bj
ec
tio
...
0%
...
0%
No
to
1. Objectionable as calling
for hearsay
2. Objectionable because
there is no foundation
showing personal
knowledge
3. Not objectionable.
75
Comparison of the requirement of personal knowledge (R.
602) to the hearsay rule.
•
If there is a no foundation showing that the witness is reporting an
event that he perceived with his five senses, then the proper
objection is “no foundation showing personal knowledge.”
Example: Without foundation, the witness testifies “Jim went out
with Sarah last night.”
– One doesn’t know whether this statement is based on
speculation, on hearsay, or something else.
• If there’s a foundation showing that the witness did personally
perceive an event, but the event that he perceived was an out-ofcourt statement, then the proper objection is “hearsay.”
Example: “Jim told me he went out with Sarah last night.”
--Here, the witness perceived an event personally (he heard what
Jim said), but Jim’s statement is hearsay if offered for its truth.
78
City of Webster Groves v. Quick, p. 215
St. Louis Court of Appeals, 1959
79
A witness’s testimony, “I looked at the clock and it said 2
PM,” would be hearsay under the Federal Rules of
Evidence.
1. True
2. False
0%
Fa
ls
e
Tr
ue
0%
80
In the clock example, there are hearsay dangers.
Nonetheless, statements by machines are not considered
to be hearsay, even when the machines were set up by
humans.
81
Anomaly?
Testimony that a professor wrote “1 PM” on the board, to
show what time it was -- hearsay.
Testimony that a clock that had just been set by the
professor said it was 1 PM -- not hearsay.
82
Comment on machine hearsay
-- You’ve got to stop somewhere. It would be inconvenient
to bring in people who calibrated a machine to testify
(not to mention those who manufactured it).
--If the opponent actually has evidence that a machine was
improperly calibrated, the opponent can request
exclusion under Rule 403.
83
It would be impractical to treat all testimony that involved
hearsay dangers as hearsay.
--Time of day
--Age
--Definitions
84
Comment: In analyzing a hearsay issue under the Federal
Rules of Evidence or the California Evidence Code,
there is normally no reason to refer to the “declarantcentered” definition.
However, if there are substantial hearsay dangers, one
might point out those dangers in making a policy
argument for classifying the statement as one that is
being offered to prove the truth of what it asserts.
86
Example:
D-1 was arrested on the street by postal inspectors. When
he saw D-2 approaching, he said:
“I didn’t tell them anything about you.”
United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983).
87
Review questions
(Note: For answers to Morgan questions, pp. 218-21, see the class website.)
Is the testimony hearsay?
1. Yes
2. No
0%
No
Ye
s
0%
89
Class website:
http://www.uchastings.edu/faculty-administration/faculty/park/classwebsite/index.html
-
Syllabus
FRE
Slides
Morgan Qs (previously pp. 218-21).
90
The end
91