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Plaintiff is suing defendant for injuries. Plaintiff claims that she lost her ability to speak as a result of defendant’s attack on her. At trial, defendant calls Witness to testify that after the attack, he heard plaintiff say, “Defendant is a horrible person.”
Not hearsay. It does not matter what Witness heard plaintiff say, but only the fact that plaintiff could speak.
To prove that the traffic signal at a particular intersection had turned green, a witness will testify that at that moment, the driver second in line at the intersection honked her
Hearsay. Honking a horn is communicative conduct, but it’s a little unclear precisely what it communicates—perhaps “the light is green,” but also possibly, “I’m an impatient person.”
Prosecution of defendant for the murder of Victim in Los Angeles by shotgun blast. There is a dispute as to the time Victim was shot. Defendant claims the shooting occurred at 6:00 when he was in another city. Prosecutor claims the shooting occurred at 4:00 when witnesses saw defendant in Los Angeles. To prove the Victim was shot at 4:00, prosecutor calls Witness to testify that on the day of the crime, she was working at her desk, heard a shot and someone yell, “I’ve been shot,” and looked at her watch, which read 4:00.
Not hearsay. The statement is offered only to prove the time, which is told by a clock that is a mechanical device.
In a proceeding to commit Professor Flevinson to a mental institution, Witness testifies that he heard Flevinson say, “I am the Queen of the Federal Rules!”
Not hearsay. The statement is offered as circumstantial evidence of state of mind.
Prosecution of defendant for violating the securities laws by providing insider information. To prove defendant’s guilt, prosecutor offers evidence that just before defendant’s wife sold her stock, defendant told her that the company was about to announce a huge loss for the previous quarter.
Not hearsay. The statement is offered for its independent legal significance that defendant was using inside information.
Wrongful death action by plaintiff, administrator of the estate of Deceased, against defendant following an automobile accident in which Deceased died. Defendant admits negligence but contests damages, claiming that Deceased died instantly in the crash and thus suffered no pain and suffering. To prove that Deceased lived for a time after the crash, plaintiff calls Witness, a bystander who observed the accident, to testify that she approached Deceased’s car just after the crash, and that Deceased was moaning incomprehensively.
Not hearsay. Deceased’s moaning is non-assertive conduct.
To prove that Zed suffered pain when another person bumped into him, evidence is offered that Zed said, “Ouch!”
Not hearsay. Saying “Ouch!” is non-assertive conduct.
Conversion action by plaintiff against defendant arising from a dispute about ownership of a certain dog. Defendant, a kennel operator, claims plaintiff sold the dog to defendant for $200. Plaintiff claims that she merely paid defendant just to watch the dog for a month. To prove that the arrangement was only for boarding and care, plaintiff testifies that when she brought the dog to defendant, she said, “I’ll pay you $200 if you will care for my dog for a month.”
Not hearsay. The statement is offered for its independent legal significance of a boarding deal (rather than a sale).
Employment discrimination action. Employer claims plaintiff was fired for incompetence; plaintiff claims racial motives. To prove plaintiff was fired for incompetence, Employer wishes to testify that a few weeks before the firing, plaintiff was demoted to a lower position.
Not hearsay. The demotion is non-assertive conduct.
Prosecution of defendant, a woman, for murder. To prove defendant committed the crime, prosecutor calls Witness, who testifies that she saw defendant commit the crime. To impeach Witness, defendant asks Witness whether she told the police that the murderer was a man.
Not hearsay. The statement is being offered to impeach Witness by showing that her statement to police was a lie.
Same case, except Witness will testify that when she approached Deceased, Deceased said, “I’m alive.”
Not hearsay. It does not matter what Deceased said; it only matters that Deceased was alive long enough—and conscious enough—to say anything.
Same case. To prove Zed was in pain when brought to the hospital, an emergency room nurse testifies that when she asked Zed, “Are you in pain?” Zed looked at the nurse, put his hand on his stomach, and said, “Ouch!”
Hearsay. Zed’s conduct was intended to communicate where he was in pain.
Same case. Plaintiff offers the testimony of Witness to testify that after defendant would not return the dog, plaintiff said to defendant, “We had a deal for board and care, not a sale!”
Hearsay. The statement made long after the alleged contract is not the words that actually formed the contract; as a result, they are not the legally operative words. Instead, this backward-looking statement is hearsay.
Negligence action by plaintiff against defendant arising from an automobile collision. At trial, plaintiff calls Witness, a bystander, to testify that shortly after the cars collided, another bystander asked Witness, “Did you see the Chevy run the red light?”
Hearsay. There is indirect hearsay in the question asked by the bystander.
Same case. Assume defendant offers Witness’s prior statement to prove that the killer was, in fact, a man.
Hearsay. Now the prior statement is being introduced for its truth.
Same case, except that Witness will testify that she did not speak to Deceased, but that Bystander told her that Deceased said, “I’m alive.”
Hearsay. Now witness is relaying the out-of-court statement of Bystander as to what Deceased said, which is hearsay (even if the original “layer” of hearsay—what Deceased said—is not hearsay).
Prosecution of defendant for burglary. Defendant claims she never left her house on the night of the crime. To prove defendant was home on the night of the crime, defendant testifies that earlier that evening, before the burglary took place, she told her husband, “I have a horrible stomach ache.”
Hearsay. This is defendant’s own out of court statement introduced to show that she had a stomach ache, and thus did not feel well enough to commit the charged crime.
Negligent entrustment action by plaintiff against defendant. Defendant allowed Zed to use her car, and Zed recklessly struck plaintiff. Defendant denies that she knew Zed was a poor driver when she loaned him the car. Plaintiff calls Witness to testify that a week before defendant loaned the car to Zed, Witness told defendant that “Zed is one of the most irresponsible and worst drives I have met.”
Not hearsay. The statement is offered for its effect on listener, defendant
Negligence action by plaintiff against defendant after the car defendant was driving ran off the road and struck plaintiff. To prove defendant’s car was in bad condition, leading to the accident, plaintiff offers evidence that an hour before the accident, someone said, “Your right front tire is missing two lug nuts.”
Hearsay. This is hearsay because it is being introduced to prove the condition of the car, which requires that the statement about the missing lug nuts be true.
Prosecution of defendant for murder. To prove defendant’s guilt, prosecutor offers evidence that defendant ran away when the police tried to question her at the scene of the killing.
Not hearsay. Running away is non-assertive conduct.
Prosecution of defendant for murder. To prove her innocence, defendant offers a letter written by Zed, now deceased, taking responsibility for the crime.
Hearsay. Zed’s letter is an out-of-court statement that is relevant only if true, and hence is hearsay.
Same case. To prove that defendant never left her house on the night of the crime, defendant testifies that she is a Sagittarius, that she read her horoscope in the paper on the day the crime was committed, and the horoscope read, “Your life will take a bad turn if you don’t stay home tonight.”
Not hearsay. The horoscope is not offered for its truth; it is offered for the effect on the listener (defendant) in encouraging her to stay at home.
Same case. Plaintiff offers into evidence an article in a local newspaper, published a week before defendant loaned the car to Zed. The article states that Zed’s driver’s license has been revoked because of several arrests for reckless driving.
Not hearsay. The statement is offered for its effect on listener (i.e., reader).
Same case. Assume the person’s statement was made in defendant’s presence, and is offered to prove that defendant knew the car was in bad condition.
Not hearsay. The statement is offered for its effect on listener, defendant.
Slander action by plaintiff against defendant. Plaintiff claims that defendant told a group of senior citizens not to invest with plaintiff because plaintiff steals money. Plaintiff calls a senior citizen as a Witness to testify to the statement.
Not hearsay. The statement is offered for its independent legal significance that what defendant said about plaintiff is a lie.