Evidence Hearsay E & E Questions

Front 1

1. Walker claims that Driver's car went through a red light and hit him as he was crossing a street. To prove that Driver ignored the traffic signal, he seeks to testify that after the accident, a person came up to him and said, "That light was red when Driver hit you." Walker's quotation of what this person said is hearsay. Explain why it is desirable for our system of evidence law to reject Walker's testimony about the statement.

Back 1

1. The person Walker is quoting is not available for cross-examination. This makes it impossible to find out what the person meant by "light was red." The declarant might not have meant to imply anything at all about whether the light was in the driver's favor or the pedestrian's favor. Without having the speaker present in court, there is no way todetermine what the words really meant. Even if it was somehow clear that the declarant meant to express the idea that the light had been red against the driver, there is also no way to assess the declarant's truthfulness. Also, there is no information about how well the declarant actually saw the accident. Perhaps the declarant arrived at the scene just after it happened and guessed or tried to figure out who had been in the wrong. Having the declarant available at the trial would allow Driver to expose fully the basis for the declarant's beliefs. One of the testimonial infirmities, poor memory, would not be a problem here, since on the facts of the problem very little time had passed between the declarant's perception of the event and the declarant's statement about it.

Front 2

if the person in Example 1 who spoke to Walker had said, "Are you all right? What kind of driver just zooms across an intersection, even when the light is red?" how would that affect your analysis?

Back 2

2. If "What kind of driver just zooms . . . ?" was sought to be introduced to show that the light was red against Driver when Driver entered the intersection, some courts might state that the declarant's words are not hearsay because they are in the form of a question, and questions do not assert anything. A better analysis would be to interpret the out-of-court words as equivalent to the assertion, "Driver had the light against him when he entered the intersection," and treat them therefore as hearsay when they are introduced to support the conclusion that the light was against Driver.

Front 3

Homeowner's house is burned down in a fire that was caused by a defective lighting fixture. Homeowner thinks that the fixture was made by Waybright Corporation and sues that company for damages. A painter once said to Homeowner, while standing on a ladder near the light, "This is a Waybright fixture." On the issue of whether Waybright made the fixture, would it be hearsay for Homeowner to state what the painter said?

Back 3

3. Yes. The declarant is the painter. The out-of-court statement is "this is a Waybright fixture," and it is sought to be introduced to show that the fixture was a Waybright fixture. Thus, the statement's relevance depends on its meaning being true. In terms of the Federal Rules, it is sought to be introduced to prove the truth of the matter it asserts. This makes it hearsay.

Front 4

Homeowner (from Example 3) puts the painter on the witness stand. The painter testifies:
"Two years ago, when I was painting Homeowner's house, I saw her lighting fixture and I told her it was a Waybright fixture." Does this testimony contain hearsay?

Back 4

Yes. The out-of-court statement is the painter's report to Homeowner that the fixture was a Waybright fixture. Note that hearsay can be a direct quotation such as "I said, €˜This is a Waybright fixture,€™" or an indirect quotation such as "I told her that it was a Waybright fixture." The declarant in this problem is the painter, he made his statement out of court, and it is offered to prove the truth of its contents. The unusual aspect of this example is that he is now repeating the statement in court while he is a witness. Self-quotation, in the opinion of some authorities, ought not to be considered hearsay. However, under the Federal Rules and in most places governed by other rules, even self-quotation can be hearsay.

Front 5

Could the painter (from Examples 3 and 4) testify that when he painted the room the fixture was in, it looked to him like the fixture was installed securely?

Back 5

5. Assuming that this information is relevant, there would be no hearsay problem. The painter in this example, unlike question 4, is telling in court something he saw. This is different, for hearsay purposes, from telling what he once said.

Front 6

6. An insurance company wants to prove that an insured believed he was suffering from arthritis at the time he applied for insurance that was only available to people who did not suffer from arthritis. Could a witness testify for the insurance company that she saw the insured sitting in a waiting room at a hospital's arthritis clinic on a date earlier than the date of the insurance application?

Back 6

Basic Instances of Hearsay and Non-hearsay

6. Yes. This testimony gets in, even though testimony by a witness that the insured had oncesaid, "I have arthritis" would be hearsay. The insured's conduct of sitting in a particular waiting room does not fit the Federal Rulesdefinition of assertiveconduct. Since it was not a statement and was not conduct meant to convey information, it is outside the scope of the hearsay definition.

Front 7

7. Plaintiff sues Defendant for trespass. The plaintiff said to the defendant the day before the alleged trespass, "I'm glad to meet you; you're nice. You're never a trespasser on my land, and you can visit it whenever you want to." Would it be hearsay evidence for the defendant to testify that the plaintiff said, "You're never a trespasser" ?

Back 7

Basic Instances of Hearsay and Non-hearsay

7. The testimony does not contain any hearsay. This is an example of out-of-court words that have independent legal significance. They are introduced by the defendant to support the proposition that he was not a trespasser, and they do include words saying that the defendant is not a trespasser. That equivalence of expression is a coincidence that does not make the out-of court words hearsay. They are introduced by the defendant to prove just that they were said. If they were really spoken, they amount to permission to enter the plaintiff's land. The court and our substantive law will assign a meaning to them such as deciding that they constitute the defense of permission in the trespass case. This effect is provided to the words by our system of property law without regard to what the declarant might have thought, remembered, seen, or meant to say when he said them. The testimonial infirmities do not matter since the words are relevant if a reasonable person who heard them would consider them to constitute permission to enter the land. It doesn't matter, under standard property law, whether the plaintiff meant or did not mean them to have their standard meaning.

Front 8

8. Mr. Victim was injured in an industrial accident and seeks damages from Mr. Maintainer, a self-employed contractor who allegedly did a negligent job of maintaining the machine that hurt him. Shortly after the injury, a government inspector checked the machine and said, "I'd never let that Mr. Maintainer do any work for me." Would testimony by Mr. Victim that the inspector said that be hearsay, if it was introduced to prove that Mr. Maintainer did bad work?

Back 8

Basic Instances of Hearsay and Non-hearsay

8. The out-of-court statement is not exactly equal to the proposition for which it is sought to be introduced—that Mr. Maintainer did bad work. All the declarant said was that she would never have Mr. Maintainer do any work for her. Yet the statement is relevant, if at all, because it conveys the meaning that the inspector thought Mr. Maintainer did bad work. That meaning is so close to the explicit content of the out-of-court statement that the statement should be classified as hearsay. If there was an issue, for example, about whether the inspector had ever heard of Mr. Maintainer or whether Mr. Maintainer had worked on the machine, proof that she said something about Mr. Maintainer would not be hearsay because the ideas that the inspector knew Mr. Maintainer or that Mr. Maintainer had worked on the machine would be unintended implications of the inspector's words.

On the other hand, it strains the imagination to say that the idea, "Maintainer did bad work" was an unintended implication of the statement, "I'd never let that Mr. Maintainer do any work for me." Obviously, there is room for disagreement about whether the inspector's statement should be treated as intending or not intending to assert something about Mr.Maintainer's work. A court would be influenced in deciding whether or not to classify the statement as hearsay by the importance of the statement in the case and by the seriousness of the testimonial infirmities in the specific situation. If the words were ambiguous and they were the proponent's only proof on a crucial issue, there would be a tendency to exclude them.

Front 9

9. Harry Hasty and Clarence Clever started an office-cleaning company that became successful. Hasty sold his share of the business to Clever and agreed not to contact any of the company's customers for a period of two years. Three weeks later, Clever suspected that Hasty was approaching customers of the business and offering to do their office cleaning. In a suit seeking damages for violation of the noncompetition agreement, Clever sought to show that Hasty solicited business from Clever's customers. Clever had a note written to him by one of his cleaning employees. It said, "Yesterday when I was cleaning the offices of Maximum Corporation, their office manager told me that Harry Hasty was calling them up and visiting them, trying to get them to stop using our company and start hiring Hasty to do their cleaning." Would the note be hearsay, if introduced by Clever?

Back 9

Basic Instances of Hearsay and Non-hearsay

9. There are three out-of-court statements in this problem:

1. Hasty to the office manager (words such as "I'd like your office-cleaning business");

2. Office manager to Clever's worker (words such as "Hasty has been soliciting our business" ); and

3. Clever's worker to Clever (note with words such as "the manager said that Hasty had solicited business" ).

Hasty's words would not be hearsay because whether it was true or not that Hasty wanted Maximum's business, Hasty's saying those words violated Hasty's promise not to contact customers of the office-cleaning business. So if Clever had a witness who could testify that she heard Hasty make his offer to Maximum, that quotation of Hasty's words would not be hearsay. Clever does not have a witness to testify that Hasty said the words. Clever has a piece of paper written by his employee. And the piece of paper quotes Maximum's office manager. The manager's words are hearsay since they state that Hasty had done something, and they are relevant only to prove that Hasty had done it (solicit business from Maximum). Similarly, the note from Clever's employee is hearsay. It is an out-of-court statement conveying the idea that Maximum's office manager had said certain things about Hasty to Clever's employee. Unless that information is accurate, the note is not relevant to the trial. It is sought to be introduced to prove that what it asserts is true: that Maximum's manager spoke to Clever's employee and told him that Hasty had solicited business from him.

Front 10

10. Accused of negligently hiring an incompetent nurse, a doctor would like to testify that one of the nurse's former employers had stated in an employment reference that the nurse "does excellent work." Would the reference comment be hearsay on the issue of the doctor's reasonableness in hiring the nurse? Would it be hearsay on the issue of whether
the nurse is skillful?

Back 10

Basic Instances of Hearsay and Non-hearsay

10. The reference comment ( "does excellent work" ) is not hearsay on the issue of how reasonable it was for the doctor to hire the nurse. Used in connection with that issue, the truthfulness of the reference is not material. All that matters is that the words were communicated to the doctor because whether or not they were true, a doctor who gets
such a reference and then employs the person described in the reference is probably acting
reasonably. On the issue of how competent the nurse really is, the out-of-court words are hearsay since they are relevant to that issue only if their assertion ("excellent" ) is true.

Front 11

11. To show that an extortion defendant knew the alleged victim, the prosecution seeks to introduce a piece of paper found in the defendant's apartment with the victim's address and telephone number on it. Is the note hearsay?

Back 11

Basic Instances of Hearsay and Non-hearsay

11. The vast majority of courts and scholars agree that this note is not hearsay—it is used just to show that there is a connection between the defendant and the victim. It is not shown to prove what the victim's address is since presumably that will be established in some other way. A minority view is that this note is equivalent to a note in the defendant's handwriting
saying, "I know victim." If the note really did say that, most courts would be more inclined to treat it as hearsay. However, in the recurring instances in which this problem is litigated, the conventional treatment is to call the writing just circumstantial evidence and decide that it raises no hearsay problems.

Front 12

12. Ms. Spectator sues the owner of a large field where a motorcycle race was held. She claims that she was hit by a motorcycle while watching the race from a hill that was marked out as safe for viewing. The defendant claims that she thought that spot was appropriate for spectators because the organizers of the race told her the race would be on flat parts of the land and never told her anything about using the hill. An investigator, hired by the owner, interviewed all the people who organized the race. Would it involve hearsay for the investigator to give the following testimony?

a. "Based on my interviews, I conclude that when the race was rehearsed, all the
riders stayed on the flat land."

b. "No one I spoke to said anything about warning the owner that the racing
motorcycles would go up the hill."

Back 12

Basic Instances of Hearsay and Non-hearsay

12. a. The statement that the racers stayed on the flat land when they rehearsed is phrased as a conclusion from the witness's investigation. It is apparent, though, that it is entirely based on what people said to him. Since it is therefore equivalent to a quotation in
court of what various people said about the events during the rehearsal, it is hearsay when introduced to support the idea that the rehearsal race did not use the hill.

b. To prove that no one gave a warning to the owner about use of the hill, the investigator states that no one mentioned warnings in his interviews. Should this be treated as silence that is not hearsay? That analysis fits usually where there is a good reason to think that a certain subject would be mentioned to the person who later
testifies about it. Where an investigator is involved, it seems likely that people would answer questions and remain silent about other topics. Their silence ought not logically to be taken as implying anything about their ideas on the non-addressed topic. If the investigator had asked, "Did you give warnings?" and people replied to that question, their answers would be hearsay if quoted by the investigator. In this problem, the investigator may not have asked any questions about warnings. If he did not ask about warnings, the lack of mention of warnings in his interviews probably does not prove anything about warnings and is therefore not relevant. If he did ask about warnings, then his reports of non-replies might best be characterized as reports of assertive conduct (silence in response to a direct question could be the same as a negative shake of the head) or as reports of conversations in which the totality of the speaker's comments added up to a statement that they gave no warnings. For these reasons, the investigator's testimony that no one said anything about warnings should be treated as not relevant (since it is based on conversations in which silence about warnings is not logically related to whether or not warnings were given) or should be treated as hearsay.

Front 13

13. Suppose that you parked your car in a shopping center and that after shopping you returned to find that another car had banged into it, crushing one of the doors. If a note on the windshield said, "I saw the accident. The car that hit you had license plate ABC-123," could you introduce that note in a suit against the owner of the car that had that license plate number?

Back 13

Written Statements as Hearsay and Non-hearsay

13. No. The statement is hearsay. Hearsay can be written or spoken. In this instance, you would be seeking to use the written words to establish exactly what they stated: the license plate of the car that hit your car. This makes them hearsay. Another problem is that there is no way of knowing the identity of the declarant (the writer) and showing the source of his or her knowledge.

Front 14

14. Patient sues a surgeon, claiming that medical negligence by the surgeon left him with severely decreased mobility in his hands that weakened them so much that he could no longer use eating utensils or hold a pen or pencil to write. To show that the patient did have the ability to write, the doctor seeks to introduce a note, written by the plaintiff one week before the trial, that says, "Thank you for your invitation, but I won't be able to come to the party Thursday because I'll be busy with my lawsuit." Is the note hearsay?

Back 14

Written Statements as Hearsay and Non-hearsay

14. This statement is not hearsay. Written words can be hearsay, just as spoken words can, but only if they are introduced to prove the truth of what they assert. Here the truth of whether the writer will be able to accept the invitation is irrelevant to the issues at trial.
But the note is relevant in a non-hearsay way. The fact that it was written shows that the plaintiff did have the ability to do some writing.

Front 15

15. In a trademark infringement case, a food company claims that an electronics company has marketed a radio with a brand name that is confusingly similar to one of the food company's brand names. The food company seeks to introduce testimony that it has received orders for the radios from many of its customers. Does this testimony include hearsay?

Back 15

Conventional Non-hearsay Situations

15. Information that customers ordered the radio from the food company is relevant because it shows that people who saw the radio and knew its brand name assumed that it was manufactured by the plaintiff food company and not by the defendant electronics company. The standard analysis of this situation is to describe the testimony as non-hearsay. The proponent is not trying to show that the out-of-court statements (the orders) were accurate. The proponent, rather, is using them circumstantially as evidence that some consumers acted in a way that suggests that the defendant's brand name was confusingly similar to the plaintiff's. A contrary result is logically supportable but rarely adopted: If the customers' orders are analyzed as statements that necessarily incorporated the idea, "I believe that you are the manufacturer of the following item," then introducing them to prove that the customers did believe that the food company was the manufacturer of the radio would make them hearsay.

Front 16

16. Mr. Poor gives some money to Ms. Rich and says, "Here is the repayment of the loan you made to me so I could buy a car." Later, Ms. Rich sues Mr. Poor claiming that the money she received was a gift, and that Mr. Poor still owes her money to repay the car loan. May Mr. Poor quote his own out-of-court statement about the purpose of the payment, or
would that be hearsay?

Back 16

Conventional Non-hearsay Situations

16. Mr. Poor may quote himself in this instance because his out-of-court words are called a verbal act or a verbal part of an act. Without those words being introduced into the trial,
the conduct of turning over money would be ambiguous. The reasoning here is similar to
the reasoning that permits words of independent legal effect to be introduced without regard to hearsay problems. Some courts use the expression res gestae as a label for defining statements of this kind as non-hearsay since the words are permitted to be introduced as "part of the act" being described.

Front 17

17. A parking lot had a large sign stating "convenient to downtown." If a state consumer affairs department alleged that the lot was really not convenient to downtown and sued the company for false advertising, could the defendant offer testimony that no customer had ever made a complaint about the lot's location or about its advertising claim?

Back 17

Conventional Non-hearsay Situations

17. Yes. Silence by a person (like each of the lot's customers) is not considered to be a statement made out of court. Since there is no statement, there can be no hearsay. Like so many issues in hearsay, this one could reasonably be analyzed to reach an opposite result. The witness is really basing testimony on a report of everything the customers have ever said to show that none of their remarks involved dissatisfaction with the location of the lot or the wording of its sign. This point is logically sound, but courts are satisfied to respond to situations like this one in a conventional way and admit the testimony. Incidentally, this
example serves as a reminder that successfully avoiding hearsay objections is not a guarantee that evidence will be admitted. Other requirements, such as relevance, must also be met. Here, to establish that the customers' silence was relevant, the defendant would need to show that it would have been easy for a disappointed customer to find a way to present a complaint.

Would the words of the sign be hearsay? No. The state consumer affairs department is seeking to introduce them to prove that they were used by the defendant and to show that they are false. There would be a hearsay issue only if the words were used in an effort to
state that the meaning they convey is true.

Front 18

18. To show that a Stanley Sportsfan was reckless (in a suit involving a claim that a defendant had been negligent to hire him for work where good judgment was required), the plaintiff seeks to introduce testimony showing that several hours after an important
professional football game had been played, Sportsfan saw one of the players in a restaurant; the player was extremely large and strong and had a reputation for committing violent acts against strangers; and Sportsfan said to the player, "I think you're a bum. You play like a little girl." Would testimony including the quotation of what Sportsfan said be defined as hearsay?

Back 18

Conventional Non-hearsay Situations

18. This testimony does not fit a sensible definition of hearsay. The words by Sportsfan are relevant whether or not they are a true statement of Sportsfan's feelings about the player. The jury can use them to assess Sportsfan's recklessness or good judgment without the jury having to decide whether the words were an accurate representation of Sportsfan's beliefs. Even if the words were false, and Sportsfan did not believe what he was saying, he
was probably reckless to say words that the player would likely consider to be insuits. The fact that Sportsfan said the words is relevant to a judgment about whether he is a reckless type of person.