Rule 801: The Basic Definition of Hearsay

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Rule 801The Basic Definition of Hearsay
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Start with a fact of consequence
Add an observer
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Bring the observer to court
No Hearsay Problem
Have observer tell jury what he saw
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Hearsay Slide
Forbidden Hearsay Inference?
For this to be probative, whom must jury believe?
The witness who is also the observer.
Not hearsay. Jury only has to believe the
witness -- no one else
If witness says something is true, it is SML that
it is true
Light was red
Light was red
Witness
Observer
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Start with a fact of consequence
Add an observer
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Bring the observer to golf course
Have observer tell friend what he saw
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Bring the friend to court
Big Hearsay Problem
Have friend tell jury what she knows
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Hearsay Slide
Forbidden Hearsay Inference?
For this to be probative, whom must jury believe?
The witness and also the observer.
Hearsay. Jury has to believe an observer who is
not testifying.
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
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Definition of Declarant
An observer who is not the testifying witness is
called a
declarant
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Definition of Declarant 2

• A declarant is anyone except
• This witness
• Testifying now
• In this court

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Basic Definition of Hearsay

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

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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

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Problem 21A
Do Problem 21A
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Bring the friend to court
Big Hearsay Problem
Have friend tell jury what she knows
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Start with a fact of consequence
Usually the FOC is something the declarant
observed about the external world
But sometimes it is not.
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Problem 21B
Do Problem 21B
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When just saying it is a FOC
Verbal Act Slander
Bills a crook
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Whats proponent asking jury to think?
Bills a crook
Bills really a crook
Bills a crook
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Slander Case
No EH required
Because substantive defamation law says so
But why is He said, Bills a crook material.
He said, Bills a crook.
He said, Bills a crook.
Witness
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When just saying it is a FOC
Verbal Act Fraud
No termites
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Whats proponent asking jury to think?
No termites
Really no termites
No termites
And hes a liar.
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When just saying it is a FOC
Verbal Act Contract Formation
Can this be true or false?
I accept
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Contract Case
Forbidden Hearsay Inference?
For this to be probative, whom must jury believe?
Just the witness.
Not Hearsay. Jury does not have to believe
anyone but 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
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When just saying it is a FOC
Verbal Part of Otherwise Legally Ambiguous Act
Bailment vs. Gift
Keep this watch for me
Happy Birthday
This is a gift
Can this be true or false?
Can this be true or false?
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Bailment v. Gift Case
Forbidden Hearsay Inference?
For this to be probative, whom must jury believe?
Just the witness.
Not Hearsay. Jury does not have to believe
anyone but the witness.
No EH required
Notice It doesnt 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
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When just saying it is a FOC
Effect on the Listener
Water in Aisle 4
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Whats proponent asking jury to think?
Theres water in Aisle 4
Aisle 4 was wet
Theres water in Aisle 4
Sure, but P will have to prove that some other way
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When just saying it is a FOC
Effect on the Listener
I am going to kill you!
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When just saying it is a FOC
State of Mind of Speaker
Water in Aisle 4
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Whats proponent asking jury to think?
Theres water in Aisle 4
Aisle 4 was wet
Theres water in Aisle 4
P will have to prove that some other way
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When just saying it is a FOC
Other Facts About Speaker

• Speaks English
• If corroborated
• Was there
• Is observant
• If proven false
• Is unreliable on other issues

Water in Aisle 4