D is charged with murder.

The case goes to trial.

The common law rules of evidence apply.

The issue is D's sanity.

The prosecution offers a letter by written by D's broker and sent to D. This letter discusses various financial matters. For example:

Dear D, you have done well in the stock market so far. You should be careful now, however. The market will turn down and tech stocks will take a particularly severe beating.

Trial judge:

What's the relevance of this, counsel? What are you trying to show?

Prosecutor:

The broker knew D very well, your Honor. He treated D as compos mentis. This is evidence that D was compos mentis, sane.

D's counsel:

Hearsay, your Honor.

Trial court:

Objection sustained.

Trial court's explanation:

Although the broker, in his letter, does not expressly assert that DD is sane, the letter displays the broker's belief that DD is compos mentis, and it is this belief alone that makes the broker's letter relevant to the issue of the sanity of DD. Thus, an out-of-court belief is being offered to show its truth. This is not permissible at common law. It is important that DD have the opportunity to cross-examine the broker about the belief in the presence of the jury. For example, it is possible that the broker had a poor memory and was confusing DD with someone else. Thus, as with conduct, if an out-of-court statement is offered to show someone's belief and the truth of that belief the out-of-court statement is hearsay even if the belief the proponent wants to show is not express, but implicit, just an assumption. The common law will call the tacit assumptions of such declarants "implied statements" or "implied assertions." It makes no difference that the declarant did not actually intend to communicate the belief or assumption that his or her statements show.

Such was the law at common law.

Here is a picture of the type of evidence that was excluded in Wright v. Thatam:

|--------------------> "Your garden, Marsden, needs more attention" [asserted]
|
|

|
|
|-----------------------> "Marsden is mentally competent [not asserted, but believed]

This is the way things stood at common law: beliefs revealed but not asserted by statements were called "implied statements" and they were treated as hearsay when the implied statements - the unasserted but revealed beliefs - were offered to show that such implied statements - such unasserted beliefs - are true.

Question: What's the story under the Federal Rules of Evidence? Would the letters in Wright v. Thatam still be treated as hearsay?

Answer: The drafters of the FRE meant to repudiate both Wright v. Thatam and the common law treatment of the sort of statements that were at issue in Wright v. Thatam. What was actually at issue in Wright v. Thatam was not the hearsay status of nonassertive nonverbal conduct such as the sea captain's conduct. The sea captain problem was merely a hypothetical that Baron Parke conjured up to make a point. What was actually at issue in Wright v. Thatam was the admissibility of thoroughly assertive statements, the hearsay or nonhearsay status of assertive "verbal conduct": the issue in Wright v. Thatam was the admissibility of letters, letters that were full of assertions. The question was whether or not the letters were hearsay if they were offered, not to prove the matters asserted by the writers of the letters, but to prove a matter revealed but not asserted by the writers -- the writers' seeming belief that the testator Marsden was mentally competent.

The Advisory Committee had this to say about the hearsay status of such evidence, see end of 2d full paragraph of the Advisory Committee's Note for FRE 801(a):

Similar considerations govern - [i.e., considerations similar to those militating against hearsay treatment of nonassertive nonverbal conduct] - similar considerations govern ... assertive conduct which is assertive but offered as a basis for inferring something other than the matter asserted.

The Advisory Committee added that such assertive statements - i.e., assertive statements offered to show something other than the matter or matters asserted - are are "excluded from the definition of hearsay by the language of subdivision (c)" of Rule 801(c), which is the FRE's general definition of hearsay.

Can someone explain this point for me? What's the Committee's theory?

Consider this situation:

DD is charged with murder of VV.

State's offer of evidence:

If allowed, WW will testify that immediately after the shot killing VV rang out, BB yelled,

Oh my gosh. Valiant Victim has been shot. Grab DD!

BB's statement is offered to show that DD, not someone else, killed VV.

Is BB's proposed testimony evidence of hearsay?

PP sues RR for injuries resulting from RR's negligence. PP alleges that he was injured because RR negligently took medications before he got in his car - medications that made RR black out, lose control of his car, and hit PP.

PP makes the following offer of evidence:

RR's statement, made a couple of days after the accident:

My car's fender speared PP; the fender went right through PP's head. Remarkable.

RR's lawyer:

May I examine RR for the purpose of making an objection?

Trial judge:

Of course.

RR's lawyer:

RR, when you made that statement, what led you to believe that the fender had gone through PP's head?

RR:

PP's daughter told me that.

RR's lawyer:

Hearsay, your Honor.

PP's lawyer:

RR's statement is an admission, your Honor. It's the statement of a party.

RR's lawyer:

But RR's admission rests on hearsay, your Honor. Furthermore, as PP himself alleges and argues, RR was unconscious before the accident happened. Therefore he could not possibly have any first-hand knowledge of what happened during or after the accident.

Trial judge:

Objection overruled. It is well-settled that an admission can rest on hearsay and that it need not be based on personal knowledge.

Now please consider this rather similar case:

PP sues RR for injuries resulting from RR's negligence. PP alleges that he was injured because RR negligently took medications before he got in his car - medications that made RR black out, lose control of his car, and hit PP.

PP's offer of evidence:

WW will testify that two weeks after the accident he heard PP's daughter say,

I spoke with RR several days after the accident. I told him that the fender of his car went right through my Poppa's brain." RR replied, "Well, I have no doubt you're right about that. I'm sure you're right about that."

RR's lawyer:

Hearsay.

PP's lawyer:

Admission.

RR's lawyer:

But RR didn't say that the fender went through PP's head. PP's daughter said that.

PP's lawyer:

That's true but immaterial. RR adopted the daughter's statement. This is an adoptive admission, an express adoptive admission. See FRE 801(d)(2)(B). RR just decided to use a shorthand way of speaking.

RR's lawyer:

But I had no personal knowledge of what the fender did.

PP's lawyer:

That doesn't matter. We're dealing with an admission here.

Trial judge:

I sustain the hearsay objection.

Please explain the ruling.

Rolls Royce hypo involving Charlie Chauffeur.

Charlie Chauffeur is driving while David Defendant is home at bed.

Charlie Chauffeur strikes Paula Plaintiff, who gets amnesia.

Civil Action: Paula Plaintiff v. David Defendant for damages.

Issue: Was Charlie Chauffeur negligent?

Paula Plaintiff calls Wanda Witness, a bystander, who ran up after the accident, to testify that Charlie Chauffeur said to Paula Plaintiff:

I'm DD's chauffeur. It was all my fault. Don't worry, I'm sure that DD will make this good.

Is CC's statement admissible?

Some difficulties:

(i) CC is not a lawyer & he may not be competent to sat who was "at fault." Does that matter?
(ii) PP brought the action against DD. not against CC. Does that matter?

(a) Is CC's statement admissible as CC's statement against interest?

Answer: No: CC does not appear to be dead or unavailable.

(b) Is CC's statement admissible as DD's statement, as the equivalent of DD's statement? Is it admissible, that is, as DD's vicarious statement? Will CC's statement be treated as DD's statement?

The answer may depend on whether the common law applies or whether the FRE apply. Please explain why.

Is Bigshot's statement admissible as an admission?

Is Bigshot's statement admissible as a statement against interest?

Government brings an action for conspiracy against Xavier. The indictment charges that Xavier conspired with Yates to rob a federally-chartered bank.

At the trial government offers to show that shortly before the robbery Yates said to his brother, "Hey man, Xavier and I are going to rob a bank. But we need some money to buy a gun. Help us out."

As we have already seen from a similar hypothetical problem, the statement by Yates may be admissible under the verbal acts doctrine. But even if it is not - because, for example, under the applicable substantive law there is no requirement of an act in furtherance of the conspiracy -- , Yates' statement is admissible against Xavier under the co-conspirator exception to the hearsay rule, an exception that makes statements made by conspirators during the course of the conspiracy and in furtherance of the conspiracy admissible against all conspirators. See FRE 801(d)(2)(D): you are partners in crime and the statement of one is the statement of all.

After conspirators Albert and Bruton rob a bank, they say to each other, "Good job. Our scheme is done." Then they split the loot and go home.

Later Albert goes into a bar and falls into a conversation with Walter Witness. Albert tells Walter Witness, "You know Bruton and I did that bank job the other day. Neat, huh?"

Albert and Bruton are arrested. They are tried jointly for conspiracy to rob a state-chartered bank. At the trial the government offers Albert's statement to Walter in evidence. Is Albert's statement admissible?

Well, Albert's statement is admissible against Albert - because Albert is a party - he's a defendant - and his own statement is being offered against him and it is therefore an admission.

But is Albert's statement admissible against Bruton?

It's not admissible under the co-conspirator exception. Why?

In United States v. Bruton, 391 U.S. 123 (1968) , the U.S. Supreme Court said that the constitutional right of confrontation of a criminal defendant in Bruton's position prohibits the government from introducing in evidence an accomplice's confession in a joint trial of the accomplices if the confessing co-defendant {e.g., Albert} asserts his constitutional right not to testify. This prohibition applies, the Court said, even if the government offers the confessing defendant's statement only against the defendant who made the incriminating statement and even if the jury is instructed to consider the incriminating statement only as evidence against the defendant who made the statement and is told not to use the statement evidence against other co-defendants, against co-defendants in Bruton's position.

One way for the government to avoid the Bruton rule is to have separate rather than joint trials of criminal collaborators such as Albert and Bruton.

Another possibility, sometimes available, is to offer a "redacted" version of the statement of a co-defendant such as Albert. But this option is unavailable if even the redacted statement suggests the guilt of the non-confessing co-defendant.

If the defendant making the statement does decide to testify, there is no Bruton problem: then the co-defendant who made the incriminating statement can be confronted and cross-examined by the other co-defendant(s).

The time is the early or mid-1970s. The place is Georgia, which, at the time, applied common law rules of evidence.

Moore and Green were indicted for jointly raping and murdering Teresa Carol Allen.

Moore and Green were tried separately.

Moore was tried first.

At Moore's trial Thomas Pasby, a private citizen, a (former) friend of Moore, testified against Moore. Pasby testified that Moore had confided to him that he had killed Allen, shooting her twice after ordering Green to run an errand.

Moore was convicted and sentenced to death.

It was then Green's turn. At Green's trial for the rape and murder of Teresa Carol Allen, Green offered the statement that Moore had made to Pasby, the statement in which Moore said that he had killed Allen while Green was running an errand, the statement that had been used against Moore in Moore's trial.

The trial judge sustained the prosecution's objection to Pasby's testimony about Moore's statement.

The trial judge ruled that Moore's statement was inadmissible hearsay in Green's trial - at the sentencing proceedings following Green's conviction.

Can you guess why?

Green was convicted and sentenced to death.

Green appealed. The case eventually wound up in the U.S. Supreme Court.

In Green v. Georgia, 442 U.S. 95 (1979) [see course web site], The S. Ct. vacated Green's death sentence, and in doing so, it said:

Regardless of whether the [Moore's statement] comes within Georgia's hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial… and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it. In these unique circumstances, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." … Because the exclusion of Pasby's testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

Federal Rule of Evidence 804(b)(3) makes an exculpatory statement against interest admissible in a criminal case. FRE 804(b)(3) provides that such a statement by another person may be used by a criminal defendant to show the defendant's innocence only if "corroborating circumstances clearly indicate the trustworthiness of the statement." See 2d sentence of FRE 804(b)(3).

This rule, had it been applicable in Georgia in the 1970s, would have covered the situation in which Green tried to make use of Moore's confession.