hearsayexercises

Nov. 3-4, 2004

Evidence Course

Hearsay Exercises

I. Assignment

(emphasis in classroom: hearsay problems and exercises, including the problems found below):

VI. A First Look at Hearsay

Introduction

Skim FRE 801-807

Basic Black-Letter Law

FRE 801(a) & FRE 802; Cal. Evid. Code § 1200(a)

FRE 805 & 806; Cal. Evid. Code §§ 1201-1202

A Basic Definition of Hearsay*

Do CALI (Computer) Lesson "Hearsay from Square One" by Roger Park

§ Familiarity with this important CALI lesson will be assumed. There will no class discussion of this lesson

Note at CB 405

Hearsay and Relevance

Review FRE 401

Testimonial Qualities and the Definition of Hearsay

Extract from Park at CB 411-412

Advisory Committee Note, "The Hearsay Problem," at RP 177

CB 412-415 ("Triangulating Hearsay")

More Pictures of Hearsay Logic*

Problems: Trespass Per Quod Servitium (Speaking Out) at CB 416

· When considering this problem please emphasize the [putative] "policy reasons" for the hearsay rule, the "official" purposes of the rule. We will consider black letter hearsay rules and principles in class very shortly.

Verbal Acts

Review Park § 7.01 at pp. 244-245 (legally operative language)

Problem: The Corn Crib Case at CB 417-418.

· Special note: we will discuss (in class) the Corn Crib Case and & Hanson v. Johnson only a bit later, in connection with the Hearsay Problems & Exercises, infra. But this is the right place & time for you to read this material.

State of Mind

effect on listener:

Park at pp. 259-260

declarant's state of mind:

Park at pp. 262 - 265

Hearsay Problems & Exercises

(analysis, summary; practice with some basic features of the hearsay rule)

An Aggravating Borderline Case for Your Consideration -- and Class Discussion (if time permits):

Bridges v. State*

Assertive versus Non-Assertive Conduct & Statements

Extract from Falknor at CB 419

Park § 7.02

Review FRE 801(a)(2) & associated Advisory Committee Note

Review FRE 801(c) & associated Advisory Committee Note

Problems: Captain Cook Bets on His Ship & Hot Pursuit, all at CB 422-423

Additional Hearsay Problems & Exercises:

Nonassertive Conduct and Related Matters

Some Rough Notes about

(i) Hearsay Treatment at Common Law of Some Assertive Verbal Conduct, and (ii) Some Odd Properties of Admissions

II.

Problem 1

Della Defendant is charged with committing murder on June 1, 2000.

At the trial, which begins exactly one year after the alleged homicide, on June 1, 2001, Della Defendant's Defense is insanity.

Della Defendant's offer of evidence:

Wanda Witness to testify that on May 30, 2000, she heard Della Defendant say,

"I am Queen Elizabeth."

Prosecutor states, "Objection. Hearsay."

The trial court states, "That's not hearsay. Objection overruled."

Please give a black-letter explanation for the court's ruling.
The truth of the matter asserted is that Della Defendant is Queen Elizabeth. The statement is not offered to show that DD is Q Elizabeth.

Q. What is the statement then being offered to show; i.e., what is the relevance of the statement if it is not offered to show that DD is Q Elizabeth?

Problem 2

David Defendant is charged with Murdering Valiant Victim on June 1, 2000.

Defense: Insanity.

David Defendant's offer of evidence:

Walter Witness to testify that on May 30, 2000, he heard David Defendant say,

"I think I am king Tut."

Prosecution states, "Objection. Hearsay."

Question 1: Is the statement hearsay?

Sub-question A: Why is the answer "arguably yes"?

Sub-question B: Why is the answer “arguably no”?

Sub-question A: Why is this statement arguably hearsay?

Answer: The statement asserts that DD thinks he’s King Tut and DD’s counsel is offering the statement to show precisely that – that DD thinks he’s King Tut.

Sub-sub-question: But isn’t the statement being offered to show DD’s disordered state of mind, to show that DD is insane? If so, isn’t it the case that the statement is not being offered to show that DD thinks he’s King Tut and that the statement is thus not hearsay?

Answer: Yes, the statement is being offered to show insanity, but it is also being offered to show that DD thinks he’s King Tut. DD’s counsel wishes to show DD’s disordered statement of mind by showing DD’s belief about his regal status. DD’s counsel, in short, is using the statement to show BOTH matters: insanity and belief in King Tut-hood.

Question: Why is the statement “I think I’m King Tut” arguably NOT hearsay?

Hint: "Functionally speaking," is there a significant difference between statement #1 {I am King Tut} and statement #2 {I believe I am King Tut}?

Point of hint is twofold:

(i) policy argument: the statement “I think I’m King Tut” amounts to the statement “I am King Tut” and vice versa, and so the law should treat the two statements the same way;

(ii) black-letter argument: the statement “I think I’m King Tut” amounts to assertion “I am King Tut” and, thus, under black letter principles, is not hearsay.

What’s the weak link in argument #(ii)

Forward-looking comment: The statement "I think I am king Tut" is admissible under an exception to the hearsay rule; i.e., to show the declarant's then-existing state of mind. See FRE 803(3):

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

…

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind…, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Problem 3

Delia Defendant is charged with Murdering Visa Victim on June 1, 2000.

Delia Defendant is arrested on January 1, 2001.

On May 1, 2001, after consultations with her attorney, Delia Defendant gives notice to the prosecution that her defense will be insanity.

At the trial, which begins exactly one year after the alleged homicide, on June 1, 2001, Delia Defendant – well, o.k., her attorney, but you know what I mean! --, Delia Defendant makes the following offer of evidence:

Warna Witness to testify that on May 15 & May 30, 2001, she heard Delia Defendant say,

"I am Queen Elizabeth I."

Question 1: Is the statement relevant?

Question 2: Is the statement hearsay?

Question 3: Can you fit the statement within the black-letter definition of hearsay? How?

Question 4: If you do make the statement fit the definition of hearsay, do you also necessarily make the statement fit within an exception to the hearsay rule? {Hint: See FRE 803(3).}
Question 1: Is the statement relevant?

It tends to show insanity.

But … are you suspicious of the statement? Why?

Given these good reasons for dissimulation, can you say the statements are irrelevant?

What about the maxim, “Credibility is a question for the trier alone.” Issue here might be if the maxim extends to this situation, a question about the credibility of a person while acting outside of the courtroom.

Precedent: claims of irrelevance in such situations are routinely rejected.

Question 2: Is the statement hearsay?

Initial impression: No, statement, if any, not offered to show that DD is Queen Eliz I.

Question 3: Can you fit the statement within the black-letter definition of hearsay? How?

Theory: It is hearsay because the DD was trying to convey the message, “I am crazy,” and the statement is offered to show, precisely, craziness.

Question 4: If you do make the statement fit the definition of hearsay, do you also necessarily make the statement fit within an exception to the hearsay rule? {Hint: See FRE 803(3).}

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

…

Would it strike you as strange if the proponent of the statement, DD’s counsel, were to rely on this exception? Why?

Equivalent: Look at me: I wish to assert that I presently think I am crazy.

Problem 4

Slip-and-fall case. The parties are Paula Plaintiff, plaintiff, and Super Supermarket, defendant. Paula Plaintiff's complaint alleges that she fell and injured herself in aisle number 3 in Super Supermarket, at 11:15 a.m., on June 1, 2000. She alleges that her injuries were the result of Super Supermarket's negligence. Super Supermarket's answer denies these allegations and it also asserts several affirmative defenses, including contributory negligence.

(a) At the trial Paula Plaintiff offers to have Walter Witness testify:

I didn't see what happened. However, I spoke with Big Bystander at 12:15 p.m. on June 1, 2000, after Paula was taken to the hospital. He said,

I was next to Paula when she fell. She fell on some catsup in the aisle.

Question: Hearsay?

Answer: Yes. Give a black letter explanation – a mechanical explanation – for this conclusion, please.

***

(b) At trial Paula Plaintiff offers to have Weighty Witness testify,

I heard a conversation between Managing Manager and Big Bystander at 10:15 a.m. on June 1, 2000. I heard Big Bystander say to Managing Manager,

There's catsup in aisle number 3.

Question: Hearsay?

Answer: That depends – on the purpose of the offer.

If the statement is offered to show Manager’s belief in the existence of catsup on the floor, not the fact, the statement is not hearsay.

Question: But what’s the relevance of the Manager’s belief? How is his belief material to the outcome of this lawsuit? [Keep in mind that the defendant is Super Supermarket, not Managing Manager.]

Tort theory: Notice to Manager is notice [of risk] to Principal or Employer.

***

This is a convenient time to consider another hearsay doctrine.

At common law the following sorts of statements fell under an exception to the hearsay rule:

Statement of a party offered against the party who made it.

This sort of statement was called an “admission.”

The FRE also exempt such statements from the hearsay rule. FRE 801(d)(2)(A) does so thus:

(d) Statements which are not hearsay.

A statement is not hearsay if--

…

(2) Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement…

The FRE change nomenclature – admissions are not hearsay – but the bottom line is the same.

Does this rule sanction the use of the statement by Big Bystander to Managing Manager?

Well, there’s a bit of a problem. First, the defending party in this lawsuit is Supermarket, not Manager. Second, the statement is by Big Bystander, not Manager.

Are these facts fatal to the attempt to use the admissions doctrine? Well, perhaps and perhaps not. Let’s approach that question and another hearsay question by considering the next scenario:

Scenario (c) of Problem 4

(c) At trial Paula Plaintiff offers to have Wrongful Witness testify,

"I spoke with Managing Manager at 10:15 a.m. on June 1, 2000. I heard him say, 'There's catsup in aisle number 3.'"

Question: Without thinking or talking about admissions, tell me how this statement could avoid being hearsay.

Answer: The statement indicates Manager’s knowledge and tort law imputes Manager’s knowledge to Super Supermarket.

Question: But you want to use Manager’s statement to prove that there was in fact catsup in aisle no. 3. Can you do so?

Answer: Yes. You use the admissions doctrine.

Question: But how? Manager is not a party.

Answer: You use an evidence doctrine that resembles the tort doctrine making principals liable for the torts of their agents, the tort doctrine of respondeat superior:

FRE 801(d)(2)(B) (adoptive admissions):

(d) Statements which are not hearsay.

A statement is not hearsay if--

…

(2) Admission by party-opponent. The statement is offered against a party and is

…

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

This is an example of a class of admissions known as vicarious admissions. Vicarious admissions are statements made by nonparties that are treated as statements of parties, that are imputed to parties. Statements made by speaking agents are one species of vicarious admissions. Speaking agents are agents who are authorized to make statements by their employer or principal.

Manager is probably authorized to make statements on behalf of his employer Supermarket. That’s probably a major part of his job.

Now consider the following problem:

(b) At trial Paula Plaintiff offers to have Weighty Witness testify,

“I heard a conversation between Managing Manager and Big Bystander at 10:15 a.m. on June 1, 2000. I heard Big Bystander say to Managing Manager, quote, ‘There’s catsup in aisle number 3,’ unquote. Managing Manager said nothing.”

Hearsay?

Question: But how can this statement to the Managing Manager be offered to show the truth of the matter that Big Bystander asserts?

Answer:

Tacit

adoptive

admission either by speaking agent of the party Super Supermarket, FRE 801(d)(2)(C), or

by an agent or employee of a party speaking about a matter within the scope of the agent’s agency or employee’s employment.

At work here is a combination of three new hearsay principles:

First, statements by non-speaking agents may be imputed to principals and employers under certain circumstances.

Second, declarants – people making hearsay statements – can adopt statements made by other people.

Third, declarants can adopt statements tacitly – i.e., through their silence.

See, again, FRE 801(d) [next page]:

(d) Statements which are not hearsay.

A statement is not hearsay if--

…

(2) Admission by party-opponent. The statement is offered against a party and is

…

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, …

***

Now consider:

(d) At trial Paula Plaintiff offers to have Watchful Witness testify,

I heard a conversation between Paula Plaintiff and Managing Manager at 10:15 a.m. on June 1, 2000. I heard Paula Plaintiff say to Managing Manager,

There's catsup in aisle number 3.

Hearsay? If not, admissible?

Here evidence of Plaintiff’s statement to Managing Manager is a two-edged sword: it may help to show, not only Super Supermarket’s liability for the negligent acts of its employees, but also PP’s contributory or comparative negligence. Does the statement’s two-edged character make it inadmissible?.

Cf. this question: Is Supermarket free to argue that the statement is relevant and admissible because it tends to show the Supermarket’s contributory negligence?

***
(e) At trial Paula Plaintiff offers to have Wanda Witness testify,

"I spoke with Managing Manager's spouse at 10:15 a.m. on June 1, 2000. Managing Manager's spouse said there was catsup on the floor in aisle number 3."

Hearsay?

[discussion: note that M’s spouse is not Supermarket’s agent or employee; hence, vicarious admission theory does not work, and neither does theory “notice of risk to employee = notice of risk to employer”]

***

(f) At trial PP offers to have Wooden Witness testify,

"I spoke with Managing Manager at 3:15 p.m. on June 1, 2000. He said to me, 'Doggone it, there was catsup in aisle number this morning.'"

Hearsay?

Question: Will the state-of-mind/notice/knowledge theory work here?

Answer: Very unlikely: tort law requires notice of risk before the harm occurred. {Note once again the relationship between hearsay analysis, relevance analysis, and substantive law.}

But there is an escape vehicle:

Answer: Vicarious admission, either by virtue of (C) or (D).

But wait: There is no evidence that Managing Manager had personal knowledge of the condition of aisle no. 3. {Suppose this is true.} Doesn’t it follow that his statement is inadmissible? See FRE 602. Didn’t the Advisory Committee say that personal knowledge is a prerequisite for the relevance of testimonial evidence? {It did.} Ergo?

Special rule:

Admissions need not rest on personal knowledge.

This rule applies to vicarious admissions as well as to garden variety admissions (“personal admissions”).

See Advisory Committee Notes pertaining to admissions.

***

(g) At the trial PP offers to have Wavering Witness testify:

"I didn't see what happened. However, I spoke with Big Bystander at 12:15 p.m. on June 1, 2000. He said to me, 'I didn't see what happened. However, I just spoke with Paula Plaintiff, just before the attendants put her in the ambulance and took her away. I heard her screaming, "That d--d catsup. Ooh, that d---d catsup."'"

Hearsay?

If so, is WW's testimony nevertheless admissible? (Please explain.)

[DISCUSSION]

Hints:

See

FRE 805 (hearsay w/in hearsay)

FRE 803(1)

FRE 803(2)

FRE 803(3)

FRE 803(4)

· And there is a possibility that Paula’s screamed utterances were not assertions.

***

On the web site I gave you some hints about this problem: I hinted that some rules might be pertinent to this question. Those rules included:

FRE 805
FRE 803(1)
FRE 803(2)
FRE 803(3)

I also suggested this possibility:
" Paula's screamed utterances were not even assertions.

I think another Rule bears mentioning. I will mention it a bit later. In the meantime, please start your analysis of the admissibility or inadmissibility of Paula's utterances.

***

[DISCUSSION; background material on following pages]
FRE 805

Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Question: Does this principle, in R 805, bother you?

The Rule purports to sanction, in principle, an indefinite number of hearsay levels: the end result of a chained of out-of-court statements if each link in the chain is either covered by a hearsay exception or is nonhearsay. In theory, therefore, the final statement reported in a chain of 10 or two out-of-court statements might be admissible. Does this trouble you?

FRE 803(1)

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

FRE 803(2)

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
…
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

FRE 803(3)

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
…
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Non-Hearsay

There is a possibility that Paula's screamed utterances were not assertions.

Please explain.

***

Have we neglected an important possibility? Is there another hearsay exception we need to consider?

What about FRE 803(4)?

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
…
(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

This exception is sometimes referred to as the exception for statements made to a doctor for purposes of medical diagnosis. But there is nothing in the federal rule that requires that statements be made directly to doctors. Statements can be made to intermediaries. The intermediaries here (if any) are the ambulance attendants. If this exception is to apply, the trial judge must find that the statements were directed at the attendants and that Paula's purpose in making the statements was "for … medical diagnosis or treatment." The trial court would also have to find that her statements either "[described] medical history, or past or present symptoms, pain, or sensations" or that her statements described "the inception or general character of the cause or external source [of her past or present symptoms, pain, or sensations] but only "insofar as [her statements describing the inception or general character of the cause or external source of her past or present symptoms, pain, or sensations] are reasonably pertinent to diagnosis or treatment."

[Problem 5 on the web site’s hearsay problems & exercises, omitted]

Please give a policy-oriented explanation for the “I can speak” problem at CB 416 (below); i.e., give a policy-oriented explanation – one couched in terms of the purposes of the hearsay rule – i.e., give a “declarant-centered” explanation – for nonhearsay treatment of the statement “I can speak” to show that the declarant can indeed speak:

Speaking Out

Action for damages to P's child, C, which allegedly occurred when D struck C, causing C to suffer permanent paralysis of her vocal chords. D's answer is a general denial. In the second week of trial, D offers W to testify that the day before he heard C say, "I can speak." P objects. What ruling and why? What if W proposes to testify that he heard C say, "Don't step on a crack or you'll break your mother's back"?

***
Problem 6

Cf. CB 417-418

The setting for the next story is Minnesota. The actors are Tenant (T), Landlord (L), and Bank (B).

T is a tenant farmer in Minnesota. L is the landlord. The agreement between T & L provides that L is entitled to 1/3 of T's crop at harvest. When the corn is harvested, Tenant is to designate the 1/3 that goes to Landlord and give it to him.

T borrows money from B in anticipation of the harvest. The loan secured by T's crops. The corn grows and T harvests it.

After the harvest L drops over to his farm, and T, pointing to a pile of corn, states, "This here's your share of the corn, Lovely Landlord." L loads that pile of corn in his wagon and takes it home.

T defaults on the loan. B seizes the 2/3 of corn that is still in T's hands. B asks L to give it the other 1/3, but L refuses. L asserts that the corn is his.

B brings an action to recover the 1/3 portion of the corn in L's hands. At the trial L offers to testify to T's statement to him, "This here's your share of the corn, Lovely Landlord."

B objects, "Hearsay."

The trial court overrules the objection.

(a) First explain why T's statement looks like hearsay.

Answer: see explanation no. 1 below

(b) Then explain why the trial court overruled B's objection.

Please give a black-letter explanation for the court's ruling.

Answer: see explanation no. 2 below

(ii) Please give a policy-oriented explanation for the result.

Answer: see explanation no. 3 below

Explanation No. 1 (reason why the statement looks like hearsay):

(a) The out of court declarant [T] asserts, ""This [corn is] your share of [all of] the corn, Lovely Landlord." The proponent of the statement at the trial - L - wants to show that the matter asserted by the declarant T - that the designated corn is L's - is true. Ergo: hearsay. See common law & FRE 801(c).

Explanation No. 2 (black-letter explanation):

(b) The out of court declarant [T] asserts, "This [corn is] your share of [all of] the corn, Lovely Landlord." The proponent of the statement at the trial - L - wants to show that the matter asserted by the declarant T - that the designated corn is L's - is true. Ergo: hearsay. See common law & FRE 801(c) (basic definition of hearsay).

Explanation no. 3 (policy explanation):

(c) The aim of the hearsay rule is to prevent the trier of fact from relying on evidence whose probative value depends on the testimonial qualities of a declarant whose demeanor cannot be examined by the trier. But the probative value of T's statement does not depend on testimonial capacities such as veracity. This is because under Minnesota law T's statement has the effect of conveying title even if T was trying to be insincere, was saying something that he did not believe.

ooTo provide either answer - whether the black letter answer or the policy answer - you need to make some assumptions about Minnesota law. See explanations 2-3 below. My explanation relies on my faint recollections of the law governing the conveyance of title to personal property. An alternative but similar rule of rule of substantive law - the law governing the granting of title to personal property by words constituting a partition of commingled personal property - was apparently the rule that the court actually deciding the similar and seminal real-world case actually used. See Hanson v. Johnson, 161 Minn. 229 (1924).

Your task now: If you can, find one or more hearsay exceptions that seem to cover T's statement to L!

Possibility 1: Does FRE 801(1) (present sense impression) apply?

FRE 803(1)
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Is T describing an event or condition that he is perceiving or sensing at the time that he speaks? Is he observing that the corn lying there on ground belongs to L? Is he observing title?

Before we analyze this possibility, consider this question:

What's the rationale for the present sense impression exception, the one codified in FRE 803(1).

Answer #1. We don't have to worry about at least one testimonial quality that renders the probative value of hearsay suspect. That testimonial quality is memory.

Answer #2: Statements made about a present sense impression are generally spontaneous. This perhaps mitigates concern about another testimonial quality: statements made while a thing is being perceived perhaps leave the declarant without time and opportunity to ponder whether or not to lie. Hence, concern about the veracity of the declarant is generally absent under these circumstances. See Advisory Committee Note to FRE 803(1):
The underlying theory of Exception [paragraph] (1) is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.

Question: Does T's assertion - if that's what it is -, does T's assertion of L's ownership of some of the corn rely on T's memory of past events?
Answer: Yes.

Question: So what?
Answer: T then is not describing - solely - an event that he is then perceiving - and there is therefore reason to worry about one of T's testimonial qualities or capacities, T's memory.
Possibility 2: Does the exception for excited utterances apply to T's statement to L? See FRE 803(2):

FRE 803(2)
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
…
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

This possibility does not pan out because nothing in the facts suggests that T was excited or had reason to be excited.

Question A: What's the explanation for the excited or spontaneous utterance exception?

Question B: Does it matter whether or not the declarant had reason to be excited?

Answer: Perhaps. The rule requires that the event to which the declarant responds be "startling."

Question B-1: If so, does a requirement that the declarant have had reason to be excited make sense?

Semi-answer by largely rhetorical question: If excitement removes the opportunity for prevarication, doesn't it do so whether or not there was a sound reason for the declarant's excitement?

Possibility 3: Is L's statement to T an admission? See FRE 801(d)(2):

Rule 801. Definitions
The following definitions apply under this article:
…
(d) Statements which are not hearsay.
A statement is not hearsay if--
…
(2) Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement…

T's statement is not an "admission" because T's statement is not the statement of a party. The parties to this action are L and B; T is not a party.

Possibility 4: If T's statements are not "admissions," are they "statements [or declarations] against interest"? See, e.g., FRE 804(b)(3):

Rule 804. Hearsay Exceptions; Declarant Unavailable
…
(b) Hearsay exceptions.
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
…
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

At common law this exception - the exception for statements against interest - would not have been applicable because at common law this exception was applicable only if the declarant was dead.

Death is no longer a sine qua non. Unavailability suffices under the FRE, and a declarant can be "unavailable" for a variety of reasons apart from death:

Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.
"Unavailability as a witness" includes situations in which the declarant--
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

The statement by T does not fail because of absence of any evidence T's death. But the facts as I have stated them also fail to show that T is "unavailable."

Please note that the vast majority of exceptions apply even if the declarant is wholly alive and quite fully available. This is true of all of the exceptions enumerated in FRE 803. But the exceptions in FRE 804 apply only if the declarant is unavailable (and at common law, dead). The main exceptions that fall into this second category are former testimony, dying declarations, and statements against interest.

Is there another reason why the statement against interest exception does not apply?

" The exception was meant to apply to assertions, and not to operative words or performative utterances that end up being disadvantageous to the declarant. For example, a threat would not be treated as a statement against interest even if the threat served as the basis for a criminal prosecution or to enhance a criminal defendant's punishment.

Question 5: Back to our hunt for exceptions that might cover the corny statement made by T to L. Does FRE 803(3) work?

FRE 803(3)
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
…
(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Does this exception work?

It seems to be a good candidate.

But it might not work under some circumstances.

For example, it would not work if it were offered to show T's belief that L has title because of T's recollection about the conversation that T and L had in the spring. In these circumstances the proviso kicks in - the proviso that bars to use of evidence of a then-existing belief to prove facts remembered. T's belief would tend to show title only because of the belief's tendency to show that at some time in the past something had happened that eventually had the effect of vesting L with title to the corn.

But the exception works if T is only describing his then-existing intent to give L title. FRE 803(3) applies to statements of intention, including the intent accompanying a present act, and not just to the intent to do an act in the future. (The intention to do an act in the present is the intention to do something at that moment that will have the effect of transferring title to T.)

Note that a statement describing a then-existing intention to do an act in the future is also excepted from the hearsay rule. For example, T's statement of an intention to confer title on T later - suppose the statement had been made mid-summer - would be admissible if offered to show that T later did so.

Question: What's the rationale for this exception?

Answer: We don't have to worry about the declarant's memory.

The U.S. Supreme Court once proclaimed that such statements are not even hearsay. The case was Hillmon and the rule it created came to be known as the "Hillmon rule." See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892). The rationale underlying this theory is murky and I confess I have never quite understood, but my guess is that the only adequate explanation for the Court's reasoning is the notion that the hearsay rule applies to statements asserting some matter of fact and that statements about future events, and they are not yet about existing facts. But whatever may be the correct interpretation of Hillmon, minds seem to have changed about the scope of the hearsay rule; the drafters of the FRE, for example, seem to have assumed that the hearsay rule does cover assertions about future events. Courts today almost always use FRE 803(3) to resolve questions about the hearsay status of statements of intention about future events.

New question:

The rationale for FRE 803(3)'s exception for statements of intention is, again, that we don't have to be worry about the declarant's memory. In view of this, (i) why have many academics argued that statements such as "Dan and I are going to go hunting tomorrow" are not covered by this exception when such a statement is offered to show that a person such as Dan went hunting and (ii) why have courts have generally rejected this argument? (The answer to the second question is anyone's guess since courts generally have failed to explain themselves on this point.)

Now put aside the possible application of exceptions to the tenant farmer case, and consider this [rhetorical] question:

Is it possible that Hanson v. Johnson and cases like it were wrongly decided? On what theory?

Possible answer: There are advantages to "stickperson hearsay"? There is good reason to keep evidence rules simple?

Problem 7

The charges against Della Defendant {DD} are

(a) conspiracy

(b) extortion.

It is alleged that Della Defendant {DD} and Common Culprit {CC} conspired to rob the Last National Bank and that Common Culprit, acting on behalf of Della Defendant, committed extortion against Valiant Victim.

At the trial Common Culprit testifies that on June 1, 2000, he and Della agreed to rob the Last National Bank; that DD then said, "We'll need a gun"; and that Culprit then said, "I'll get the money for a gun from Valiant Victim. He thinks you're a violent person. He'll give me the money."

The prosecutor then offers the following testimony by Common Culprit:

I spoke with Valiant the next day, June 2. I told him, "'Give me your money. I need it to buy a gun. You'd better give me your money. Della is in this with me. And, as you know, she's a violent person.'" Valiant said, "O.K. You can have my money." He then gave me his money.

The trial court overrules Della Defendant's hearsay objection; it rules that Culprit's testimony is not hearsay.

Question 1: There are at least two possible theories for the trial court's ruling. What are they?

1. The statement by Culprit constitutes an act in furtherance of the conspiracy.

•The statement by CC – including the statement "Della is in this with me" – constitutes an act in furtherance of the conspiracy. CC's statement to Valiant is not offered to prove that DD is "in this" with CC. Evidence of DD's participation or agreement is necessary, but the statement "She's in this with me" is not being offered for that purpose. It is being offered solely to show that CC, who may be a member of the conspiracy, committed an act in furtherance of the conspiracy.

2. The statement by Culprit amounts to an element of extortion, viz., an act inducing fear. Smith is liable for Jones' acts under principles of conspiratorial or accomplice liability.

•The statement by CC amounts to an element of extortion, viz., an act inducing fear. DD is liable for CC's acts under principles of conspiratorial or accomplice liability. Hence, the statement is not being offered to show that CC is DD's agent or that DD is "in this" with CC. Evidence of that relationship will have to be offered to sustain a conviction, but CC's statement is only being offered to show that an act inducing fear was committed.

The evidence is not HS if offered for these purposes. However, it is HS if offered to show that Della was "behind it all."

Question 2: What about the statement "We'll need a gun."?

Is this hearsay if it is offered to show that CC believed they would need a gun?

Is it hearsay if it is offered to show that DD believed they would need a gun?

Question 3: What about the statement by Valiant, "O.K. You can have my money"? Is this statement hearsay?

Problem 8

PP sues DD's insurer, International Insurer {II}, in a so-called "direct action state." PP claims that she was injured on June 1, 2000, as a result of the negligent driving of DD, International's insured. At the trial International offers to show that on May 15, 2000, DD called one of II's agents on the telephone and said, "I want my insurance canceled."

Question:

Is DD's statement an "admission"?

(No. … Why?)

Further questions:

Is DD's statement hearsay?

Does the answer to this question depend on something else?

(Yes.)

On what?

Answer: The answer depends on whether the applicable insurance law allows oral cancellation of insurance policy. Please explain.

Moral of the story: verbal acts doctrine is intimately connected to substantive; whether the mere uttering of some statement has legal significance depends entirely on the applicable substantive law.

More questions:

If DD's statement is hearsay is it nevertheless admissible to show that DD canceled his insurance? Please explain. {Hint: See FRE 803(3) (statements of then-existing intention).}

Problem 9

Mortified Moribund Mortimer – a/k/a/ 3M – fell to his death from a window in Room 423 on the 20th floor of the Xenon Building. Common Claimant sues to recover from International Insurer on an accidental death policy on the life of 3M. International Insurer does not deny that Common Claimant is the designated beneficiary of the policy or that 3M is dead. It does deny that 3M died accidentally; it claims that 3M did not inadvertently fall out of the window, but that he committed suicide by deliberately jumping out the window.

At the trial Common Claimant offers to have Wally Witness testify that he spoke with 3M in Room 423 two hours before 3M fell to his death and that Moribund said to him, "There's a stash of crack out on the ledge out there" and that 3M pointed toward the window ledge from which he fell to his death.

Please explain why International Insurer's hearsay objection is overruled.

If any essential facts are missing, make reasonable factual assumptions and state what those assumptions are.

For purposes of this problem please assume that the life insurance policy does not purport to exclude liability under the policy when the insured's death occurs during the insured's commission of a crime or attempt to commit a crime.

Why is this assumption necessary to render the hypothetical problem imaginable?

--- because without this assumption the statement “there’s crack out there” is not relevant except to show that there was crack out there, i.e., to show the truth of the matter asserted by the declarant

***

The preceding problem – Problem 9 – brings us face-to-face {once again!} with a special category of hearsay:

out-of-court statements to show state of mind

that is:

it gives an example of out-of-court statements to show state of mind rather than the truth of the matter asserted by the maker of such out-of-court statements

In one sense, there is nothing unusual nonhearsay out-of-court statements offered to show state of mind. Such statements are merely another example or implication of the general rule that statements that not introduced to prove the truth of the matter asserted are not hearsay.

Furthermore, I hope you realize that we have seen this type of nonhearsay before. We saw it in the “catsup in aisle number 3” hypotheticals --when, for example, a witness testified that, about an hour before Paula Plaintiff’s slip-and-fall, he or she heard Big Bystander say to managing Manager, “There’s catsup in aisle number 3.” This statement is nonhearsay if it is offered to show that managing Manager had the state of mind of thinking or believing that there was a hazardous condition in aisle number 3 of Super Supermarket.

The state of mind category of nonhearsay out-of-court statements deserves special treatment largely because it is easy to get some things mixed up when an out-of-court statement is offered to show the state of mind of the speaker, the state of mind of the declarant.

Preliminary: The general theory underlying the non-hearsay treatment of such statements is the same as when statements are offered to show the state of mind of a listener; that is: the making of a statement that X is true can show both that the listener and the speaker believed that X is true.

Consider, for example, an action for damages due to injuries sustained by airplane passengers due to air turbulence. The evidence is that about ten minutes before the accident the pilot took the microphone and announced, “Ladies and Gentlemen, there is severe air turbulence ahead.” This statement might be offered to show the passengers’ belief that air turbulence was ahead – to show the passengers’ contributory negligence for their failure to fasten their seat belts (or to show the passengers’ mental agony!). Or the pilot’s statement might be offered to show the pilot’s belief that air turbulence lay ahead – to show the pilot’s negligence for failing to take measures to take measures to avoid he risk that he believed lay ahead. In either case, the hearsay rationale for admissibility is the same: to show a state of mind that the substantive law proclaims is significant.

This principle, however, breeds serious difficulties when an out-of-court is offered to show the declarant’s state of mind and when insufficient attention is given to the basic principle that an out-of-court statement making an assertion cannot be offered to show that the declarant’s assertion is true.

Courts sometimes do manage to mangle the basic principle that in the absence of an exception an out-of-court statement is not admissible for its truth. They are particularly prone to do so when they say that a person’s state of mind can serve as circumstantial evidence.

The statement that a person’s state of mind can serve as circumstantial evidence is true enough. For example, a state of mind such as fear can be evidence that the person who had that state of mind fled, and the state of mind of anger can be good circumstantial evidence that the person with such anger later acted aggressively. But the principle that states of mind are legitimate circumstantial evidence transgresses the spirit of the hearsay prohibition when it induce courts to admit out-of-court statements whose probative value depends on the believability of the persons making such out-of-court statements. Consider Wisconsin v. Bridges

....
There the court considered the admissibility of out-of-court statements made by a seven year to the police. The child was allegedly molested by the defendant. The child described an apartment in which the child said she had been molested. The police later happened to enter defendant’s apartment and they found that some of the features of the defendant’s residence matched the description given by the seven year old child. The court ruled that despite the hearsay rule, the child’s description of the apartment in which she had been allegedly molested was admissible. In one part of its opinion explaining why this was so the court seemed to reason thus:

(i) the child’s out of court statement is admissible to prove that she had the state of mind of believing that she had been in an apartment like the defendant’s

(ii) the child’s state of mind of believing that she had been in such an apartment is good circumstantial evidence that she had in fact been in such an apartment

The difficulty with this reasoning is that it performs an end run around the hearsay rule. Furthermore, that kind of reasoning, if taken seriously, eliminates the existence of hearsay.

What the Wisconsin court suggested can be said about the child’s statement can also be said about every hearsay statement; i.e.:

an out-of-court statement is evidence of a state of mind of believing fact X and the state of mind of belief in fact X is good circumstantial evidence of the existence or truth of fact X

ocs of X ------> b in x ----> x

The trouble is that such reasoning invites us to rely on the declarant’s belief. The precise purpose of the hearsay rule is to prohibit reliance on the belief of a declarant about an out-of-court assertion made by the declarant.

This is why the exception in FRE 803(3) for statements describing then-existing states of mind prohibits the use of belief-mind-states or memory-mind-states {states of remembering} for retrospective purposes -- this is why this exception does not extend to the truth of facts that the declarant putatively remembers or believes. Out-of-court statements to show states of mind are compatible with the spirit of the hearsay rule when the states of mind have probative force, have evidentiary value, even if the declarant’s states of mind about the world are incorrect.