Hearsay Exceptions: Class 10

Question 1

The Hearsay “Five”

1. Is the _____ referring to a/an ______ which occurred _______ ___ ________?
2. Is it even a/an _______?
3. Is a/an ______ offering the _________ to _____ ___ ______ ______?
4. Does the _______ fall within one of the ________ (so that it’s either not ________ or not _______ under the hearsay rule)?
5. Does the ___ _______’s _______ ______ apply to limit the use of the _______?

Answer 1

1. Is the [witness] referring to a/an [statement] which occurred [outside the courtroom]?
2. Is it even [a statement]?
3. Is a/an [party] offering the [statement] to [prove the truth of the matter asserted]?
4. Does the [statement] fall within one of the [exceptions] (so that it’s either not [a statement] or not [excluded] under the hearsay rule)?
5. Does the [6th Amendment]’s [Confrontation Clause] apply to limit the use of the [statement]?

Question 2

R. 801(a)

Statement. “Statement” means a _______’s _____ _____, ______ ________, or _______ ______, if the person intended it as a/an _______.

Answer 2

“Statement” means a [person]’s [oral assertion], [written assertion], or [nonverbal conduct], if the person intended it as an [assertion].

Question 3

______ + _______ = Statement

Answer 3

[Declarant] + [Assertion] = Statement

Human + Intentional Communication = Statement

Question 4

True or False:

An assertion is any action that is intended to communicate a fact, whether oral, written, or nonverbal.

Answer 4

True.

Question 5

Rule of Thumb re: assertion v. non-assertion:

Do we need to _______ ___ _____’s ______ in order to rely upon the conduct?

Answer 5

Do we need to [assess the actor’s sincerity] in order to rely on the conduct?

Question 6

True or False: The following are statements:

1. A dog’s bark, “intended” to communicate the presence of drugs.
2. A home security system sending a signal notifying the police of a break-in upon being tripped by a burglar.
3. The words conveyed in an email.

Answer 6

1. False. A dog’s bark is not a statement because the dog is not human.
2. False. The alarm’s signal is not a statement because the alarm is not human.
3. True. The words conveyed in an email because they were selectively input by a human for the purpose of conveying a message.

Question 7

True or False:

A permanent-marker “X” placed on a person’s hand by a club bouncer to communicate that he is under 21 is not a statement.

Answer 7

False. An X placed on a person’s hand by a club bouncer to indicate that he is under 21 IS A STATEMENT because it is the result of an action taken by a human intending to convey a certain meaning. That is, the assertion “not 21” was made by the declarant by way of his taking the action required to communicate that fact: writing the X on the hand.

Question 8

A witness testifies about the “X” for the purpose of showing (the truth of the matter asserted, which is) that Daniel is under 21. Admit?

1. Yes
2. No, it’s hearsay
3. No, it’s irrelevant

Answer 8

2. No, it’s hearsay.

Remember: It’s only hearsay if it was admitted to prove the truth of the matter asserted.

Question 9

“The gunman had an “X” on his hand.” [The “X” was put there by a club bouncer to prove that the gunman, Daniel, was not 21 the night before the robbery at the club.] Admit?

1. Yes.
2. No, it’s hearsay.

Answer 9

1. Yes. It’s not admitted to prove the truth of the matter asserted by the “X,” which is that Daniel the gunman is not 21.

Question 10

True or False:

Whether an assertion was intended by a person’s particular silence, under particular circumstances, is a question decided by a judge as a preliminary question under R. 104(a).

Answer 10

True.

Question 11

Under what circumstances is the following statement elicited to prove the truth of the matter asserted?

Doctor: “I spoke with the patient’s internist and she never mentioned a lung problem.”

Answer 11

If the defendant’s silence was intentional, and the doctor was testifying toward proving the fact that the defendant had a lung problem.

Question 12

True or False:

A receipt of purchase is necessarily and entirely inadmissible hearsay if introduced to prove the truth of the matter asserted thereon.

Answer 12

False. Only the parts which are assertions are eligible to be hearsay, including the items keyed into a computer-generated receipt and the person’s name. The bar code, the price, and the check number are machine-generated automatically, so they’re not assertions.