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Rule 801: The Basic Definition of Hearsay

Rule 801: The Basic Definition of Hearsay. Start with a fact of consequence. Add an observer. Bring the observer to court. Jury. No Hearsay Problem. Have observer tell jury what he saw. Not hearsay. Jury only has to believe the witness -- no one else. Forbidden Hearsay Inference?.

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Rule 801: The Basic Definition of Hearsay

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  1. Rule 801:The Basic Definition of Hearsay

  2. Start with a fact of consequence Add an observer

  3. Bring the observer to court Jury No Hearsay Problem Have observer tell jury what he saw

  4. Not hearsay. Jury only has to believe the witness -- no one else Forbidden Hearsay Inference? For this to be probative, whom must jury believe? Hearsay Slide The witness who is also the observer. If witness says something is true, it is SML that it is true Light was red Light was red Witness = Observer

  5. Start with a fact of consequence Add an observer

  6. Bring the observer to golf course Have observer tell friend what he saw

  7. Bring the friend to court Jury Big Hearsay Problem Have friend tell jury what she knows

  8. Hearsay. Jury has to believe an observer who is not testifying. Forbidden Hearsay Inference? For this to be probative, whom must jury believe? Hearsay Slide The witness and also the observer. If observer (who is not the witness) says something is true, it is SML that it is true He told me light was red Light was red Witness is not the Observer

  9. Definition of Declarant An observer who is not the testifying witness is called a declarant

  10. Definition of Declarant 2 • A declarant is anyone except: • This witness • Testifying now • In this court

  11. Hearsay is evidence of • An out of court statement • Offered to prove the truth of • The matter stated • by the declarant Basic Definition of Hearsay

  12. Basic Definition of Hearsay 2 Hearsay is evidence that has probative value only if • The jury believes someone • Who is not currently subject to cross-examination

  13. Problem 21A Do Problem 21A

  14. Bring the friend to court Jury Big Hearsay Problem Have friend tell jury what she knows

  15. Start with a fact of consequence Usually the FOC is something the declarant observed about the external world But sometimes it is not.

  16. Problem 21B Do Problem 21B

  17. When “just saying it” is a FOC Jury Verbal Act: Slander Bill’s a crook

  18. What’s proponent asking jury to think? And is a liar. Jury Bill’s a crook Bill’s really a crook Bill’s a crook

  19. Slander Case No EH required Because substantive defamation law says so But why is “He said, ‘Bill’s a crook” material. He said, “Bill’s a crook.” He said, “Bill’s a crook.” Witness

  20. When “just saying it” is a FOC Jury Verbal Act: Fraud No termites

  21. What’s proponent asking jury to think? Jury No termites Really no termites No termites And he’s a liar.

  22. When “just saying it” is a FOC Jury Verbal Act: Contract Formation Can this be true or false? I accept

  23. Not Hearsay. Jury does not have to believe anyone but the witness. Forbidden Hearsay Inference? For this to be probative, whom must jury believe? Contract Case Just the witness. No EH required Because substantive contract law says so But why is “He said, ‘I accept’” material. He said, “I accept.” He said, “I accept.” Witness

  24. When “just saying it” is a FOC Jury Verbal Part of Otherwise Legally Ambiguous Act: Bailment vs. Gift This is a gift Keep this watch for me Happy Birthday Can this be true or false? Can this be true or false?

  25. Not Hearsay. Jury does not have to believe anyone but the witness. Forbidden Hearsay Inference? For this to be probative, whom must jury believe? Bailment v. Gift Case Just the witness. No EH required Notice: It doesn’t matter whether he meant it. Because substantive property law says so But why is “He said, ‘This is a gift’” material? He said, “This is a gift.” He said, “This is a gift.” Witness

  26. When “just saying it” is a FOC Jury Effect on the Listener Water in Aisle 4

  27. What’s proponent asking jury to think? And , heard & therefore believed it Jury There’s water in Aisle 4 Aisle 4 was wet There’s water in Aisle 4 Sure, but P will have to prove that some other way

  28. When “just saying it” is a FOC Jury Effect on the Listener I am going to kill you!

  29. When “just saying it” is a FOC Jury State of Mind of Speaker Water in Aisle 4

  30. What’s proponent asking jury to think? Since , said it, it is SML he believed it Jury There’s water in Aisle 4 Aisle 4 was wet There’s water in Aisle 4 P will have to prove that some other way

  31. When “just saying it” is a FOC Jury Other Facts About Speaker • Speaks English • If corroborated: • Was there • Is observant • If proven false: • Is unreliable on other issues Water in Aisle 4

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