Rule 801: The Basic Definition of Hearsay. Start with a fact of consequence Add an observer.

Rule 801:The Basic Definition

of Hearsay

Start with a fact of consequence

Add an observer

Bring the observer to court

Have observer tell jury what he saw

No Hearsay Problem

Jury

Hearsay Slide

Light was red

Light was red

If witness says something is true, it is SML that it is true

Forbidden Hearsay Inference?

Witness

For this to be probative, whom must jury believe?

The witness who is also the observer.

= Observer

Not hearsay. Jury only has to believe the witness -- no one else


Add an observer

Bring the observer to golf course

Have observer tell friend what he saw

Have friend tell jury what she knows

Bring the friend to court

Big Hearsay Problem

Jury

Hearsay Slide

He told me light was

red

Light was red

If observer (who is not the witness) says something is true, it is SML that

it is true


Witness

For this to be probative, whom must jury believe?

The witness and also the observer.

is not the Observer

Hearsay. Jury has to believe an observer who is not testifying.

Definition of Declarant

An observer who is not the testifying witness is called a

declarant

Definition of Declarant 2

A declarant is anyone except:

•This witness•Testifying now•In this court

Basic Definition of HearsayHearsay is evidence of• An out of court

statement• Offered to prove the

truth of • The matter stated

by the declarant

Basic Definition of Hearsay 2

• The jury believes someone

• Who is not currently subject to cross-examination

Hearsay is evidence that has probative value only if

Problem 21A

Do Problem 21A

Have friend tell jury what she knows

Bring the friend to court

Big Hearsay Problem

Jury


Usually the FOC is something the

declarant observed about

the external world

But sometimes

it is not.

Problem 21B

Do Problem 21B

When “just saying it” is a FOC

Verbal Act: Slander

Jury

Bill’s a crook

What’s proponent asking jury to think?

Jury

Bill’s a crook

Bill’s really a crook

Bill’s a crook

And isa liar.

Slander Case

He said, “Bill’s a crook.”

He said, “Bill’s a crook.”

No EH required

Witness

But why is “He said, ‘Bill’s a crook”

material.

Because substantive defamation law says so


Verbal Act: Fraud

Jury

No termites


Jury

No termites

Really no

termites

No termites

And he’s a liar.


Verbal Act: Contract

Formation

Jury

I accept

Can this be true or false?

Contract Case

He said, “I accept.”

He said, “I accept.”

No EH required


Witness

For this to be probative, whom must jury believe?Just the witness.

Not Hearsay. Jury does not have to believe anyone but the witness.

But why is “He said, ‘I accept’” material.

Because substantive

contract law says so


Verbal Part of Otherwise

Legally Ambiguous

Act: Bailment vs. Gift

Jury

Keep this watch for

me

Happy BirthdayThis is a

giftCan this be true or false?

Can this be true or false?

Bailment v. Gift Case

He said, “This is a

gift.”

He said, “This is a

gift.”

No EH required


Witness

For this to be probative, whom must jury believe?Just the witness.

Not Hearsay. Jury does not have to believe anyone but the witness.

But why is “He said, ‘This is a

gift’” material?

Because substantive

property law says so

Notice: It doesn’t matter

whether he meant it.


Effect on the Listener

Jury

Water in Aisle 4


Jury

There’s water in Aisle 4

Aisle 4 was wet

Sure, but P will have to prove that

some other way


And , heard & therefore

believed it


Effect on the Listener

Jury

I am going to kill you!


State of Mind of Speaker

Jury

Water in Aisle 4


Jury


Aisle 4 was wet

P will have to prove that some other

way


Since , said it, it is

SML he believed it


Other Facts About Speaker

Jury

Water in Aisle 4

• Speaks English• If corroborated:

• Was there• Is observant

• If proven false:• Is unreliable on

other issues

Rule 801: The Basic Definition of Hearsay. Start with a fact of consequence Add an observer.

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