HEARSAY. Evidence. What constitutes evidence? Evidence can come in many forms.
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1 HEARSAY Evidence What constitutes evidence? Evidence consists of testimony, writings, material objects or other things presented to the senses and offered to prove whether a fact exists or does not exist. Evidence is either direct or circumstantial. Evidence can come in many forms. It can be an exhibit admitted into evidence. the smoking gun a glove found on the ground DNA It can be testimony. 1
2 Who may give testimony? The plaintiff The defendant (but not required in a criminal case) Witness(es) Who is a witness? Someone who is testifying in court at this particular trial. Who has taken an oath to tell the truth, the whole truth, and nothing but the truth. Who may be subject to perjury if lying. Whose demeanor can be observed by the jury. Who can be cross-examined by the opposing side. A witness may testify about anything personally experienced through any of the 5 senses. I saw the defendant leave a 7/11 store. I heard a baby crying in the next room. I smelled something rotting. The tacos tasted funny. I felt very nauseated after taking the medicine. 2
3 Testimony can be someone s opinion (A doctor): The patient s symptoms appeared be those of the swine flu. (A police officer): Having examined the tire tracks, I believe that the Mercedes was speeding. (A linguist): This clause of the contract is ambiguous. What testimony is not admissible? Testimony that is not relevant. At issue: Which party was at fault in a car accident last month. Testimony: The driver of the Fiat had an argument with his girlfriend last week. Hearsay What is hearsay? Federal Rules of Evidence: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A statement is an oral or written assertion. A declarant is a person who makes a statement. 3
4 A declarant is a person who makes a statement. Who is the declarant of the statement: I saw the defendant leave a 7/11 store.? Situation 1, Witness: I saw the defendant leave a 7/11 store. Situation 2, Witness: I overheard my friend George say, I saw the defendant leave a 7/11 store. Situation 1 and/or Situation 2. Which testimony is admissible? Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Situation 1: The witness is testifying and is also the declarant (the one making the statement) and is testifying at the trial or hearing. Situation 2: The witness is testifying but is not the declarant; George, the out-of-court friend, is the declarant because he s the one that made the statement. A statement is an oral or written assertion Hint: A statement is an utterance that can be either true or false. Two ships having the same name is an example of referential indeterminacy. Shakespeare is not the greatest Englishlanguage playwright. Was Deveaux the first case about diversity of citizenship? Write your name and ID number on this test. 4
5 What cannot be an assertion? 1. A question: Who left the room? [interrogative] neither true nor false 2. A command: Leave the room. [imperative] neither true nor false 3. An assertion: Harry left the room. Is true or false. Hearsay? yes or no? Hearsay is an assertion...offered in evidence to prove the truth of the matter asserted. Issue: Who left the room? Statement: Harry left the room. Issue: What were Mary s last words? Statement: Harry left the room. Not all out-of-court statements are hearsay: If a statement by an out-of-court declarant is offered in evidence for a purpose other than to prove the truth of the matter asserted, then it is not hearsay. Issue: Whether Mary was delirious following her brain surgery. Mary s out-of court statement on waking up from the surgery: I am flying over the Eiffel Tower with 3 angels. 5
6 Issue: Whether Mervyn felt threatened by the Godfather. Godfather to Mervyn: I don t like you. Issue: Whether George knew where the final exam was held. George to Harry: In what room is our final exam? Issue: Whether Joe s best friend Jim tried to kiss Joe s wife: Joe s wife s statement to Joe: Jim tried to kiss me. Issue: Whether Joe had a reason for punching Jim in the nose. Joe s wife s statement to Joe: Jim tried to kiss me. Types of statements that are not hearsay Verbal act: Issue: Whether Pete made an oral offer to Henry. Pete s statement: I ll sell you my car for $1000. Hearer s reaction or state of mind: Issue: Whether Mervyn felt threatened by the Godfather. Godfather to Mervyn: I don t like you. 6
7 Speaker s indirect state of mind Issue: Whether Mary was delirious following her brain surgery. Mary s out-of court statement on waking up from the surgery: I am flying over the Eiffel Tower with 3 angels. Utterance for its own sake Issue: Whether Manuel said something in Spanish. Manuel s out-of-court statement: Soy un buen estudiante. NOT hearsay: Statements offered to show: 1. Verbal act 2. Hearer s reaction or state of mind 3. Speaker s indirect state of mind 4. Utterance for its own sake 7
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