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61 Cards in this Set
- Front
- Back
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On the issue of whether X and D were engaged to be married, D’s statement to X, “I promise to marry you on June 1, 1931.”
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Could be hearsay (I think he only said this to make the kid in class feel better). But, as a contract – marriage is a contract- it is NOT hearsay.
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On the issue of the sanity of D, a woman, D’s public statement, “I am the Pope.”
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Not hearsay- because we are trying to prove she is insane. Indirect evidence of her state of mind.
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On the issue od D’s adverse possession of Blackacre, D’s assertion, “I am the owner of this farm.”
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Not Hearsay. “I am the owner of Blackacre” – speaks to the open and notorious element of adverse possession. It could be hearsay- but the non-hearsay value is an element of adverse possession. The making of the statement has independent legal significance.
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On the issue of X’s provocation for assaulting Y, D’s statement to X, her husband, “Y ravished me.”
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Not Hearsay. It doesn’t matter whether it is true or not. If the husband reasonably believes it to be true– it is enough for heat of passion.
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On the issue of D’s consciousness after the attack, D’s statement, “X shot me, as he often threatened to do.”
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Not Hearsay. the issue is consciousness. If they are offering the statement to support consciousness its NH.
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On the issue of identity of the shooter, D’s statement, “X shot me, as he often threatened to do.”
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Hearsay- Proving the identity- this is hearsay
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On the issue of whether X made threats to shoot D, D’s statement, “X shot me, as he often threatened to do.”
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Hearsay- the issue is whether X made threats.
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On the issue of X’s knowledge of speedily impending death, D’s statement to X, “You only have a few minutes to live.”
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Not Hearsay- Not offered for truth but state of mind (discussion about the Requirements of the dying declaration exceptions. - One requirement is that the person who made the statement actually believes, at the time they made the statement, that they were actually going to die. the fact that someone is about to die becomes relevant to the admissibility of the statement.) BUT, are we trying to prove how long this person has to live? no. If so. Hearsay. State of mind of the listener is important. Knowledge and notice is state of mind.
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On the issue of X’s knowledge of speedily impending death, X’s out of court statement, “I realize I am dying.”
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Hearsay. Some state of mind statements are hearsay when they are direct affirmative assertions that a certain state of mind exists. Out of court assertion offered to prove its truth is hearsay. Because it might not be true...
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On the issue of whether a transfer of 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.”
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Not Hearsay (Hanson v. Johnson) Contracts//independent legal significance. Words accompanying a transfer of property.
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On the issue of whether a transfer of chattel from D to X was a sale or gift, D’s statement the day following the transfer, “I gave you the chattel as a birthday present.”
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Hearsay. The transfer was yesterday.
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On the issue of damages to the family reputation in an action for the seduction of P’s daughter, her reputation for chastity.
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Not Hearsay. Issue is the damages of reputation. Offered to show the reputation (what people in community say and think about you before and after an event). (not offered to show what type of a person you are)
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On the issue of D’s ill-feeling toward X, D’s statement, “X is a liar and a hypocrite.”
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Not hearsay- Offering it for reputation. Not to prove the truth of the statement
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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.”
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Not Hearsay- reputation
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On the issue of reasonableness of X’s conduct, in the shooting of Y by X, Y’s reputation, known to X, as a violent, quarrelsome man.
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Not hearsay- offering it for reputation
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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.
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Not Hearsay
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Action for malicious prosecution of P by X on the charge of murdering Y. On the issue of probable cause, Y’s reputation, known to X, as a quiet, peace-loving citizen.
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Not Hearsay
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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 an agent of P.”
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Not Hearsay – independent legal issue- making a contract
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On the issue whether D was an agent of P, D’s statement, “I am making this offer to you as an agent of P.”
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Hearsay – Because it is being used to prove that you are the agent.
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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.
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Not Hearsay-
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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.
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Hearsay- because it is assertive conduct supporting the idea of guilt. trying to prove guilty
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As tending to prove X’s insanity, the fact that he was confined in an insane asylum.
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Not Hearsay
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As tending to prove forgery of a will by X, D’s angry statement to X. “Well, I never forged a will, anyway!”
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Hearsay- statement made out of court. (Sarcasm)
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As tending to prove D’s guilt of a particular criminal act, the fact the that D fled under suspicious circumstances, immediately after the criminal act was committed, solely in order to escape.
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Not Hearsay- purpose/ meaning is often extrapolated from conduct. This is like number 25. reasonable interpretation.
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On the issue of whether a transfer of chattel from D to X was a sale or gift, D’s statement accompanying the transfer, “Here is your birthday gift.”
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Not Hearsay- words accompanying the transfer are deemed to be part of the transfer. Operative fact.
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As tending to prove that X was suffering from disease T, the mere fact that D, a physician, treated him for disease T.
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Not Hearsay. Non-assertive conduct
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On the issue of adverse possession of Blackacre, D’s statement, “I paid X $5,000 for this farm.”
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Not Hearsay. He is claiming that he adversely possessed. we aren’t asking how much he paid- we are asking whether he possessed.
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To show that X was ill (heart disease), W offers to testify that X complained of pain in his chest.
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Hearsay. Assertion in an attempt to prove a fact.
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In a contest of a will on ground of forgery, to show testator’s feelings towards X, the sole legatee, W offers to testify that testator had X arrested for forgery.
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Not Hearsay. It is offered to show state of mind.
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In a contest of a will on ground of forgery, to show testator’s feelings towards X, the sole legatee, W offers to testify that testator ordered his superintendant to discharge X from testator’s employ.
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Not Hearsay. To show feelings.
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In a contest of a will on ground of forgery, to show testator’s feelings towards 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 know the charge to be false.
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afortiori. If one is true, the other is obviously true. Not Hearsay. Because if 32 and 33 are not hearsay, than this is also not hearsay. They knew he didn’t do it.
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Action for $500, the price of an automobile. Plea, payment, On the issue of payment, W offers to testify that he say Defendant hand Plaintiff a $500 bill, and say, “This is the payment for that car.”
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Not Hearsay- because the words here are accompanying action. This is like consideration. it is part of a contract
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Action for $500, the price of an automobile. Plea, payment, On the issue of payment, W offers to testify that on the following day, defendant said to plaintiff: “ I was glad to be able to pay you cash for that car.”
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Hearsay – the day after the contract was formed. This isn’t a contract exception
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Action for conversion of an automobile. To prove value, plaintiff offers a receipt for the purchase price, $5000, signed by the dealer from whom he bought it.
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Hearsay- can be oral or written. In America, receipts don’t have independent significance. They are a written memorialization describing what has just happened. Evidence of a contract, but not the contract.
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Action for personal injury 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, defendant, a mechanic, said: “the spindle on that front wheel may break at any moment.” If offered to show the spindle defective.
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Hearsay. Defining sentence: if offered to show the spindle defective. It is offered to prove a fact
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Action for personal injury 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, defendant, a mechanic, said: “the spindle on that front wheel may break at any moment.” If offered as tending to show assumption of risk.
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Not Hearsal. Because it is offered to show assumption of risk. This is a state of mind. You assume the risk if you are put on notice.
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In a prosecution for sale of pornography, the prosecution offers on ehndred letters sent to the defendant’s post office box, each of which says, in substance: “Send me some of those dirty books.”
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Not Hearsay – the people who are calling aren’t affirmatively saying the person is selling, they are just saying they want to buy. There are some courts that say this is hearsay- there is a dividing line between assertion and nonassertion. That in saying they would like to buy porn they are asserting that he sells porn · this is a gray area that exists
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As tending to show that D had never repaid a loan, W offers to testify that P hired W to collect the sum from D
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Not hearsay if you are showing conduct, not an assertion (same gray area)
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To prove that the defendant committed a crime, the prosecution offers evidence that the F.B.I. offered a reward for his capture.
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has to be the same as above. The logic is similar. but perhaps there is more of an assertion
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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.
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Hearsay- assertion of the fact that it is a gun; Hearsay- (even though W is a witness on the stand) General Rule of hearsay: he isn’t saying he saw the act happen, he is saying he told his wife
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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 seen D do act X. M’s testimony is offered to fix the time.
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Not Hearsay- only being offered as to the issue of time, not whether or not D did act X. (you would need to provide a limiting instruction to the jury for an admission of this nature)
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To prove that the defendant committed the crime, he prosecution offers a confession made to police officers.
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Hearsay. In California. It is an exception
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To prove hat a defendant committed the crime, the prosecution offers evidence that the defendant remained silent after being arrested for the crime
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Not Hearsay- non-verbal conduct, but is not assertive. You need a statement (either verbal or conduct). Silence is not a statement
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To prove that the defendant committed the crime, the prosecution offers into evidence a certified copy of a prior conviction for the same offence.
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Hearsay- the record was made by a different court- it is an out of court assertion of a fact to prove he had been convicted.; · if this was being offered to show that he is a convicted felon (not that they did it, just that they were convicted) the record may be of independent significance.; · here, the purpose really matters when determining hearsay
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To prove that her husband was insane, a wife offers evidence that he live din a nest in the top of a tree for the last five years
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Not Hearsay- state of mind
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In an action fro breach of contract, the plaintiff offers into evidence an advertisement conceded to be that of the defendant offering a reward for certain information which the plaintiff claims to have provided.
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Not Hearsay- something to do with contracts. If rewards are offered, unless you withdraw them, you have to honor it.
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To prove paternity, the plaintiff offers evidence that the defendant referred to the child as “my son.”
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Hearsay. To prove paternity. Out of court statement
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To fix the time of a murder, the prosecution offers a witness who testifies that minutes after he heard the shot, he heard a clock chime three time.
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Not Hearsay- not a person
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To prove adultery, the husband offers proof that a house guest after a visit had described to one of his cronies a birthmark that that accused wife has on an intimate part of her anatomy. The existence of the birthmark has previously been testified to by the husband while the wife has testified that only herhusband and her parents knew of the mark.
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Not Hearsay – Not offered to prove the existence of the birthmark, but rather his knowledge of the birthmark (this is state of mind)
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To prove that a couple is married, a witness is offered to testify that he heard the exchange of nuptial vows.
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Not Hearsay- separate legal issue- operative fact
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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.
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Not hearsay - to prove notice (notice is a state of mind)
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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.”
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Not Hearsay- doesn’t matter what he said
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In a prosecution for the theft of valuable homing pigeons, evidence is offered that when the defendant’s pigeon coop was opened, all of the birds flew to the home of the victim.
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Not Hearsay
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Personal injury case. To show pain and suffering, plaintiff calls a nurse who testifies that the plaintiff was screaming when he was brought to the hospital.
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What is a scream? If it is not an assertion, then no Hearsay. But if a scream is a cry for help in which you are asserting that you are in pain, then this could be an assertion and Hearsay. Most courts would probably say it isn’t an assertion. Normally not hearsay, but maybe you can make an argument for hearsay
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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.
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Not Hearsay. Never heard any words
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In a paternity suit, the mother takes the stand and when asked to identify the father of her child, she points to the defendant.
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Not Hearsay
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To prove that the defendant is the father of her child, the mother offers a letter into evidence from defendant’s attorney in which the attorney states that his client has admitted that he is the father of the child.
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Hearsay... double hearsay. two layers of hearsay.
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Personal injury litigation. Plaintiff testifies that there was a sign facing the intersection toward the direction that the defendant had come from without stopping and that sign said: “STOP”.
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Not Hearsay -The sign’s not asserting anything.
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To prove that the insured under a life policy is dead, the wife offers a death certificate.
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Hearsay- birth, death, marriage certificates are out of court certificates offered now to prove something true from another time (they are also exceptions...)
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In a plagiarism suit, the plaintiff testifies that he caught the defendant in his apartment copying portions of the plaintiff’s typed manuscript in longhand on a sheet of paper.
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Not Hearsay- no statement here.
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Murder prosecution. To support a self-defense claim, defendant introduces witnesses who testify that before the killing defendant told them he was afraid of the victim.
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Hearsay- even though it was a state of mind – direct assertion of state of mind is an out of court assertion.
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