Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/66

Click to flip

66 Cards in this Set

  • Front
  • Back
On the issue whether X and D were engaged to be married, D’s statement to X, “I promise to marry you on June 1, 1931.”
Not Hearsay – Operative Fact. An offer to marry is in reality no different than an offer and acceptance with regard to contract. Certain actual legal consequences actually flow from a marriage proposal. Known as “breach of promise”. It was not uncommon in the 1930's for a woman to sue a man who proposes and then subsequently breaks off the engagement, whether there were monetary damages or not. This is a classic example of a contract.
On the issue of the sanity of D, a woman, D’s public statement, “I am the Pope.”
Not Hearsay; Offered to prove state of mind of the speaker.
On the issue of D’s adverse possession of Blackacre, D’s assertion, “I am the owner of this farm.”
Not Hearsay. D not offering the statement to prove its truth; he’s offering it for the exact opposite reason. Because in adverse possession, the state of mind of the possessor is important, and must be that he KNOWS he is not the owner, but is possessing it anyway, then here, since he made the statement during the adverse possession time period, and now he is in a hearing to quiet title via adverse possession, he was obviously lying when he made the statement; thus it is not being offered for its truth b/c D would not want it offered for its truth.
On the issue of X’s provocation for assaulting Y, D’s statement to X, her husband, “Y ravished me.”
Not Hearsay b/c it’s being offered on the question of X’s provocation, which is analytically similar to defenses to crimes like self defense in that D’s reasonable and honest belief is what matters, not whether he is correct in his belief. Regardless of whether D was lying or not when she told her husband X that Y ravished her, as long as when D told X, he reasonably and honestly believed her and then went out and killed Y, this statement would be nonhearsay to prove X’s state of mind as well as the reasonableness of anyone’s behavior upon hearing their wife make this type of statement. So the statement is not offered to prove its truth.
On the issue of D’s consciousness after the attack, D’s statement, “X shot me, as he often threatened to do.”
Not Hearsay; Exactly like Murdoch Case – The fact that he made a statement is relevant to whether D was conscious. It doesn’t matter what he said. So the truth of the statement is not at issue.
On the issue of identity of the shooter, D’s statement in 5.
Hearsay; Statements offered to prove the truth of the matter asserted – offered to prove the identity of who shot him.
On the issue whether X made threats to shoot D, D’s statement in 5.
Hearsay; Statements offered to prove the truth of the matter asserted – offered to prove X had made threats before.
On the issue of X’s knowledge of speedily impending death, D’s statement to X, “You have only a few minutes to live.”
Not Hearsay; Goes to State of Mind of the Listener
In 8, X’s out of court statement, “I realize that I am dying.”
Hearsay! Although this is being offered as to the speaker’s state of mind, a direct assertion of state of mind is considered Hearsay.
On the issue whether a transfer of a chattel from D to X was a sale or gift, D’s statement accompanying the transfer, “I am giving you this chattel as a birthday present.”
Not Hearsay; Operative Fact – Similar to the corn crib case – The rule is if words accompany a transfer that describe the legal significance of the transfer, they are considered just like the terms of an oral contract. While a gratuitous gift may not be a contract, there are consequences that flow from the fact that something was a gift as opposed to a loan, or part of consideration, etc. Thus, the explanation that something is a gift is considered an “operative fact.”
On the issue in 10, D’s statement the day following the transfer, “I gave you the chattel as a birthday present.”
Hearsay! Difference b/t this and previous question is it is a description of a past event (majority of hearsay will fall into this category [a description of a past fact or a past event].) Here because the statement is made after the transfer was made (the day after) it’s considered a description of a past event.
On the issue of damages to the family reputation in an action for the seduction of P’s daughter, her reputation for chastity.
Not Hearsay; Think of it in terms of libel/slander – A Statement is made re: the lack of chastity of the daughter which will definitely hinder he chances of marrying well b/c it affects her and her family’s reputation in a negative way. The family sues for defamation claiming truth is not a defense b/c truth did not exist – this is defamatory. When you’re suing for defamation that has affected reputation, the measure of damages is to determine what the reputation was before the defamatory statement and what it is after, and in some way place a monetary amount to compensate for this loss of reputation. Thus, reputation is not an uncommon event to be quantified monetarily in the law – we often have to put a monetary value on people’s reputations. The crucial elements in establishing the amount of damages is 1) reputation before; and 2) reputation after – gap b/t the two is how we measure. So if reputation is not truth, it is the most blatant form of hearsay – it is the out of court assertions of people who may not even know them personally who claim that something is true about them. If offered to prove its truth, it will be hearsay. But here, are we offering it to prove the truth of the family’s reputation? the truth of the daughter’s reputation? The reputations are not being offered to prove their truth, but rather simply to prove what people have said about the family before and what people are now saying about them. Reputation in a case like this case involve two separate issues: If offered to prove that the Daughter was unchaste, then reputation will be considered hearsay. However, when measuring damages by looking at reputation before and after the defamatory statement, the evidence of the daughter’s reputation will not be considered hearsay b/c there doesn’t matter whether there is any truth to the reputation (either before or after).
On the issue of D’s ill-feeling toward X, D’s statement, “X is a liar and a hypocrite.”
Not Hearsay; The keys to these questions deal with statements like “offered to prove ill feelings” i.e., it’s the feeligns that are at issue. Thus when you see stuff like this, it should make you lean toward nonhearsay, b/c it’s an emotion/state of mind. It’s not being offered to show that X is a liar and a hypocrite, but if someone hears that about someone, it may affect the way another feels towards them.
On the issue of reasonableness of X’s conduct in the shooting of Y by X, D’s statement to X, “Y has threatened to kill you on sight.”
Not Herasay. Not being offered to prove that Y threatened X, but rather how a reasonable person would respond to hearing this – state of mind. Also similar to self -defense theory.
On the issue in 16, Y’s reputation, known to X, as a violent, quarrelsome man.
Not Herasay. Not being offered to prove that Y threatened X, but rather how a reasonable person would respond to hearing this – state of mind. Also similar to self -defense theory.
Action for malicious prosecution of P by X on the charge of murdering Y. On the issue of probable cause, P’s reputation as a gangster, known to X.
Non-Hearsay. Anytime you see the phrase Probable Cause, it tends to deal with a lot of reasonableness “was a person reasonable” and when we’re dealing with reasonableness, you realize that you’re dealing with an issue that often doesn’t deal substantively with the truth of the matter.
Action for malicious prosecution of P by X on the charge of murdering Y. Re: Y’s reputation, known to X, as a quiet, peace-loving citizen.
Non-Hearsay. Anytime you see the phrase Probable Cause, it tends to deal with a lot of reasonableness “was a person reasonable” and when we’re dealing with reasonableness, you realize that you’re dealing with an issue that often doesn’t deal substantively with the truth of the matter.
On the issue of the terms of a contract with T negotiated by D, D’s statement, “I am making this offer to you, as the agent of P.”
Non-Hearsay. Operative Fact; Terms of a contract.
On the issue whether D was the agent of P, the statement D’s statement, “I am making this offer to you, as the agent of P.”
Hearsay. b/c we’re taking a term of the contract and not offering it to prove something about the terms of the contract.
As tending to prove that X was suffering from tuberculosis, the fact that D, a physician, ordered X to a tuberculosis sanitarium for six months, concealing from X and X’s relatives the character of the hospital.
Not Hearsay; No assertive conduct. Doctor’s treatment of X was not done to prove that X had tuberculosis; My Question – Classic example of non assertive conduct – especially b/c they indicate that he was trying to hide the fact of tuberculosis.
As tending to prove X’s honesty, the mere fact that D, X’s employer, promoted him from the position of order clerk to cashier.
Not Hearsay. There is nothing being asserted here. However, the nonassertive conduct could be turned in assertive if that was the intent of the manager/owner. If we change the facts to “D promotes X to cashier specifically b/c he has heard that X has a reputation in the community for dishonesty and he doesn’t believe it b/c X has worked for him for a long time and D wants to change his reputation . . .” This would become assertive conduct because the actor is trying through his conduct to assert something. The key to whethe rsomething is assertive or not is to look to the intent of the actor as to whether they were trying to communicate a fact, be it to one person or the world, the attempt/desire to communicte that fact makes it an assertion, be it conduct or words.
As tending to prove D’s guilt of the crime of killing X, the fact that D fled under suspicious circumstances immediately after X’s murder, in order to draw suspicion upon himself.
Hearsay; Because is said “in order to draw suspicion upon himself”, he is making an assertion – he’s trying to say something (i.e., I’m the murderer!) The intent of the actor is crucial in determining whether conduct is assertive, and here we’re told the actor is intending to communicate (unlike 27 where’s D is trying to run and hide – doesn’t want to tell anyone anything; he’s just trying to hide).
As tending to prove X’s insanity, the fact that he was confined in an insane asylum.
Non-Hearsay. No assertive conduct. No one is making an assertion here. IT is like a doctor operating on someone for an appedicitis – Someone is in a clinic, but no one is asserting why they are there.
As tending to prove forgery of a will by X, D’s angry statement to X, “Well, I never forged a will, anyway!:
D’s statement is to X who is accused of forging the will, and D’s statement is offered to prove as some evidence that X is a will forger. Per prof, this statement is stated in a sarcastic manner – that is, that the person to whom they’re saying it, is in fact a will forger. And their intent is to say that D is a will forger. So, this is Hearsay, b/c it’s assertive conduct on the part of the speaker (as long as we interpret it as sarcasm) which means that X IS will forger, and it’s being offered to prove that the person being spoken of is a will forger. (Here, D is NOT the defendant, which makes this question that much more confusing).
As tending to prove D’s guilt of a particular criminal act, the fact that D fled under suspicious circumstances immediately after the criminal act was committed, solely in order to escape.
Non-Hearsay. Even though running away could be seen as assertive, it’s not assertive in the legal context (eg., when police see a D run away from a crime scene, courts accept that if someone runs from the police, it is relevant to the question of consciousness of guilt. There’s a high likelihood that you’re running b/c you have something to hide.) No assertion here in D’s running away b/c he’s hoping no one sees him. He’s not trying to state any fact. He’s just trying to hide.
On the issue whether a transfer of a chattel from D to X was a sale or a gift, D’s statement accompanying the transfer, “Here is your birthday gift.”
Non-Hearsay. Seen this before. Operative fact b/c the words accompanying a transfer like this, explaning it, are deemed to just be part of it. In oral contracts, these words have to take place at some point. Someone has to say what it is, and as long as the words are stated at the time of the transfer, they are considered part of the contract (i.e., operative fact).
As tending to prove that X was suffering from disease T, the mere fact that D , a physician, treated him for disease T.
Non-Hearsay. More generic version of non-assertive conduct.
On the issue of D’s adverse possession of Blackacre, D’s statement, I paid X $5000 for this farm.”
Non-Hearsay; To clarify, we must assume that the period of adverse possession was 1/1/01 thru 1/1/06, and this statement is not made after the adverse period, it is made during the period of adverse possession. Not Hearsay b/c if D believed he paid for the land and tells everyone that he did,
To show that X was ill, W offers to testify that X complained of pain in his chest.
Hearsay. Because D is attempting to assert a fact – that he had chest pains – and even though the matter to be proved is that he was ill, the chest pains can be a symptom of the illness, and thus the truth of D’s statement is relevant to whether he had the illness. THIS IS A HARD ONE.
In a contest of a will on ground of forgery, to show testator’s feelings toward X, the sole legatee, W offers to testify that testator had X arrested for forgery.
Not Hearsay. B/c merely offered to show the fact that you had someone arrested for forgery and that tends to be some evidence that you don’t like him. If you really like someone to the point that you are going to leave them as the main devisee of the will, you may be willing to cut them some slack. So it’s relevant to show ill will enough to be admitted. State of mind of actor who has him arrested.
In a contest of a will on ground of forgery, to show testator’s feelings toward X, the sole legatee, W offers to testify that testator ordered his superintendent to discharge X from testator’s employ.
Not Hearsay. Relevant to show T’s state of mind, and this is even less prejudicial than the previous one.
In a contest of a will on ground of forgery, to show testator’s feelings toward X, the sole legatee, W offers to testify that testator falsely charged X with the crime of bigamy under such circumstances that testator must have known the charge to be false.
Not Hearsay. The only difference between 34 and 32 and 33 is 34 is much more probative of the point its trying to prove b/c having someone arrested for something they know is false, really shows someone’s state of mind. It’s still not being offered for its proof, it’s just really strong evidence that T did not like this guy.
Action for $500, the price of an automobile. Plea, payment. On the issue of payment, W offers to testify that he saw D hand P a $500 bill and say, “This is the payment for that car.”
Not Hearsay. Just like the corn crib case.
Action for $500, the price of an automobile. Plea, payment. On the issue of payment, W offers to testify that on the following day D said to P: “I was glad to be able to pay you cash for that car.”
Hearsay. Considered a description of history and not part of the oral contract.
Action for conversion of an automobile. To prove value, P offers a receipt for the purchase price, $5,000, signed by the dealer from whom he bought it.
This would be non-hearsay if we can prove that the receipt is to be treated just like any part of the contract, like, in #35 wherein we treated “here is payment” as part of the contract. Unfortunatley, we can’t say this b/c these words are not accompaying the transfer, they are after the transfer. They aren’t being spoken by the person giving the money, rather by the person receiving the money as a receipt back. And as such, it doesn’t qualify as #35 as the term of a K. Receipt is not considered a contract. It is considered far mor analogosu to #36 b/c it’s a description after the fact of an event that has taken place.
Action for personal injuries by a guest in an automobile against the owner. Defense, contributory negligence and assumption of risk. W offers to testify that an hour before the accident, in the presence of plaintiff, a mechanic said: “The spindle on that front wheel may break at any moment.” If offered to show the spindle defective.
Hearsay. Somewhat analogous to #31 and the “chest pains” relevant to the “illness”. Here, the spindle being defective is relevant to that it might break at any moment.
Action for personal injuries by a guest in an automobile against the owner. Defense, contributory negligence and assumption of risk. W offers to testify that an hour before the accident, in the presence of plaintiff, a mechanic said: “The spindle on that front wheel may break at any moment.” If offered as tending to show assumption of risk.
Not Hearsay. Assumption of Risk is a State of Mind Question. Passenger was put on notice of the risk and assumed it anyway. Here it doesn’t matter if the statement about the spindle is true, it’s being offered to show that P was put on notice of the possible defect and possible danger.
As tending to show that D has never repaid a loan, W offers to testify that P hired W to collect the sum from D.
This is just like the doctor operating on an appendicitis, b/c there is no assertion here; non-assertive conduct. But this seems a little different, there is no question that when you hire a collection agency, you tell them that the person owes you money. In this one, the authors thought that several jurisdictions would conclude that this was in fact assertive conduct b/c just factually hiring someone to collect a debt for you is a little different from someone being committed to an asylum b/c at some point you would have to assert that the person to be collected from owes you money. So, this could possibly be Hearsay b/c some jx’s may consider this as assertive conduct, and thus hearsay.
As tending to show that D had a revolver at an affray, W offers to testify that as D passed W’s house, W called his wife’s attention to a revolver sticking out of D’s pocket.
To clarify, let’s assume that the affray takes place at 1:30 PM and the prosecution is trying to prove that D had a gun at this event. One of the bits of evidence they try to offer is W’s earlier statement, whcih he testifies to now in court, that he made this statement at 1:00 PM on this afternoon. This Q is not a W on the stand saying “I saw a gun in his pocket at 1:00" offered to prove he still had the gun at 1:30. Rather, here we have a W on the stand who doesn’t actually say that he saw the gun in his pocket – all he’s testifying to is that he pointed to his wife and saying “look, that guy has a gun in his pocket.” This is just like “I don’t remember the accident” but I do remember saying “There was a blue car that ran a red light that caused the accident.” The law presumes in these types of situations that the W is no better than a 3rd person here and thus viewed as a “prior consistent statement” which when offered to support a W’s testimony are Hearsay, if offered to prove their truth, even if the W is on the stand. The exception to “consistent statements” requires that before a W’s prior out of court statement consistent with their testimony can be admitted, that W’s crediability re: that testimony must be attacked. i.e., if all W says is “I saw the gun at the event.” on direct, and no questions are asked on cross, then direct cannot then ask if he told anyone that because he had not been attacked. So this is Hearsay.
W testified that he saw D do act X, and offers to testify: “I told M within one hour after the event that I had seen D do act X.” Offered to show D’s conduct.
Hearsay. Prior consistent statement. When a W gives on the stand testimony about an event, he cannot then testify as to who he told about the event. This is a prior consistent statement.
W testified that he saw D do act X, could not remember the date, but within an hour thereafter reported to M. M offers to testify that at 3:30 P.M. of June 1, 1944, W told M that he had just seen D do act X. M’s testimony is offered to fix the time.
Not Hearsay b/c its offered to fix the time.
To prove that D committed the crime, the prosecution offers a confession made to police officers.
Although all confessions are Hearsay b/c D says to the police “I committed the robbery” and then it’s offered in court against D to prove he committed the robbery. Classic Hearsay. But, when he say Hearsay, we mean an out of court assertion offered to prove it’s truth, but this is shorthand for the underlying reason for the Hearsay Rule. This is the Admissions Exception – The FRE exempts confessions from the Hearsay Rule. When a party objects to their OWN out of court assertion offered to prove the truth of the matter.
To prove that D committed the crime, the prosecution offers evidence that D remained silent after being arrested for the crime.
Not Hearsay. No statement, because silence is not a statement.
To prove that D committed the crime, the prosecution offers into evidence a certified copy of a prior judgment of conviction for the same offense.
Hearsay – this is like Double Hearsay b/c you’d have to accept the other jury’s decision that he had committed this crime in order to believe that he committed the crime here. Confusing – End of class. Tired!
To prove that D committed the crime, the prosecution offers a witness to testify that he was present and observed the jury return a verdict of guilty in a prosecution of the D for a similar prior offense.
Hearsay, although less so than 53 which is considered double hearsay.
To prove that her husband was insane, a wife offers evidence that he lived in a nest in the top of a tree for the last five years.
Not Hearsay. It’s just a statement about someone’s conduct.
In an action for breach of contract, P offers into evidence an advertisement conceded to be that of D offering a reward for certain information which P claims to have provided.
Not Hearsay. Operative Fact. Classic example of non-assertive conduct.
To prove that D committed a crime, the prosecution offers evidence that the FBI offered a reward for his capture.
**On his exams, if he provides this type of hypo, the correct answer will be assertive conduct and therefore hearsay. Also if the hypo is like the collection agency one in Question 40, the correct answer will also be Hearsay. Prof believes that more thought should be given as to whether these types of situations should be considered hearsay since it’s about as close as you can get in non-assertions to an assertion. (Most courts would probably declare this to be an example of non-assertive conduct under theory that FBI is merely acting and not asserting anything to the world. If this non-assertive conduct is not hearsay when offered to prove that D now committed a crime in part b/c FBI offered reward for him. However, on the other hand, an FBI Wanted Poster could be argued as an assertion that the D committed the crime he’s wanted for.)
In an heirship proceeding, the claimant testifies that the deceased was his father.
Not hearsay b/c the claimant is making his assertion in court, thus not an out-of-court assertion. However, there may be an extremely rational way of realizing that it is hearsay. If a couple of questions were asked as to why he believes the deceased is his father, it could lead to statements that would be considered hearsay. Remember Prof’s story about his defense case of the man accused of selling alcohol to minors. Prof objected to minor testifying about his age at the time of the incident in court b/c he only knows his age b/c he has been told how old he is...
To prove paternity, P offers evidence that D referred to the child as “my son.”
The statement “my son” is offered to prove paternity, so it’s pretty clear that the offeror is trying to use D’s statement “my son” as an expression saying that it is his son. So the question for our purposes is, when you offer a statement like this to prove that someone is the father, is it an out of court statement offered to prove its truth? This is HEARSAY b/c it’s a direct assertion of a fact as it’s offered. If it’s not, then it’s irrelevant.
To fix the time of a murder, the prosecution offers a witness who testifies that minutes after he heard a shot, he heard a clock chime three times.
Not Hearsay – non-human evidence. Offered to fix the time of an event. Also statements from machines or animals are never hearsay.
To prove adultery, H offers proof that a house guest after a visit had described to one of his cronies a birthmark that the accused wife has on an intimate part of her anatomy. The existence of the mark has previously been testified to by the husband while the wife has testified that only her parents and her husband knew of the mark.
Not Hearsay b/c statement not offered to prove that she has a birthmark.
To prove that a couple is married, a witness is offered to testify that he heard the exchange of nuptial vows.
Non-Hearsay. Operative Fact. Uttering marriage vows is like entering into a contract.
To prove notice of a defect in the defendant’s car in a personal injury suit, the plaintiff introduces evidence of the defendant’s past attempts to repair his car.
Not hearsay. No statement is made. Offered to prove notice. Non-assertive conduct.
In a common disaster case, in order to establish survivorship, evidence is offered that after the accident one of the victims was heard to cry: “I’m alive.”
Non-Hearsay b/c it doesn’t matter what he says, just the fact that he said anything at all.
In a prosecution for the theft of valuable homing pigeons, evidence is offered that when D’s pigeon coop was opened, all of the birds flew to the home of the victim.
Non-Hearsay – Animal behavior is never hearsay b/c the pigeons cannot be questioned.
In a prosecution for sale of pornography, the prosecution offers one hundred letters sent to D’s post office box, each of which says, in substance, “Send me some of those dirty books.”
Not Hearsay. D didn’t do anything. Similar to Tate case wherein they try to offer evidence of letters sent to testator in order to prove his competency. Non-Assertive conduct.
Personal injury case. To show pain and suffering, P calls a nurse who testifies that P was screaming when he was brought to the hospital.
Non-Hearsay. However, when someone is in pain and they scream they are trying to assert that they are in pain. Thus the argument could be made that this sort of thing may very well be a sort of deep down assertion. Odds are you wouldn’t be successful, but it may be worth a try. B/L – Not Hearsay
In a divorce case, after the husband has testified that his wife was always nagging him at the top of her voice, the wife calls a neighbor to testify that she never heard any nagging.
Non-Hearsay. No statement.
In a paternity suit, the mother takes the stand and when asked to identify the father of her child, she points to the defendant.
Not Hearsay b/c it occurs in court.
To prove that D is the father of her child, the mother offers a letter in evidence from D’s attorney in which the attorney states that his client has admitted he is the father of the child.
Hearsay. But could probably get in under exceptions to hearsay. Without the exceptions, this would be hearsay, in fact double hearsay.
Personal injury litigation. P testifies that there was a sign facing the intersection toward the direction that D had come from without stopping and that sign said: “STOP.”
Not Hearsay. Traffic signs are not hearsay.
To prove that the insured under a life policy is dead, his wife offers a death certificate.
Hearsay, although it may still get in under an exception to hearsay rule called ‘the official records exception”.
In a plagiarism suit, P testifies that he caught D in his apartment copying portions of P’s typed manuscript in longhand on a sheet of paper.
Non-Hearsay. No statement here; just eyewitness testimony.
Murder prosecution. To support a self-defense claim, D introduces witnesses who testify that before the killing defendant told them he was afraid of the victim.
Hearsay b/c it’s a statement of “state of mind”. Out of court statement of D offered to prove D was afraid of this person and statement is “I’m afraid of this person.”
To show that D was home and thus could have killed his wife, the prosecution calls her paramour who testifies that when hubby was gone and the coast was clear, the wife always pulled down a shade on a particular window but when he was home the shade was always open. The prosecution calls a neighbor who testifies that on the night of the murder the shade was open.
Hearsay, Even though the statement is not verbal, this is a code – if the shade is up or down holds meaning. Here they’re offering it for its relevancy to prove he was home. That it really was a message. That the wife was asserting something by having the shade up. Analogize to Paul Revere’s “one if by land; two if by sea.”