EVIDENCE PART 2

EVIDENCE PART 2 - EVIDENCE PART II OUTLINE HEARSAY (Rule...

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EVIDENCE PART II OUTLINE HEARSAY (Rule 801-807) Hearsay is an out of court statement being offered to prove the truth of the matter asserted herein. All hearsay problems have an out of court declarant. The jury can’t see him, hear him and he can’t be cross-examined. Ex. Witness testifies that the declarant said the heat was on in the apartment. The statement is being offered to prove that the heat was in fact on-this is inadmissible hearsay. NON-HEARSAY (1) However, you look for another purpose or proposition to get the evidence in . Evidence can be offered to show not that the heat was on, but that the declarant was in the apartment that day. This evidence is admissible because it is not being used to show the heat was on. Then of course the other side would ask for a limiting instruction to say that the evidence is being offered only to show that the declarant was there not that the heat was on. (2) Some statements have independent legal significance- When an out of court statement is relevant in a manner that does not depend upon the truth of the statement, the out of court statement is not hearsay under the rule 801(c) definition, and consequently, the exclusionary rule does not operate to bar the out of court statement. Ex. I give… I accept… I vote… Performative acts are also non-hearsay. Ex. someone screams fire (this just gives a warning in a public place. Not being offered to prove a fire, just that a person gave a warning), I accept this offer. (3) Offering to prove the effect on mind of listener/reader proposition . Hearsay Analysis 1. What kind of case are we in? Civil or Criminal? 2. What kind of jurisdiction are we dealing with? State or federal? 3. What are the bare bone facts? 4. Who is the proponent of the evidence and what is he seeking to introduce into  evidence? Who is testifying? 5. What proposition is the evidence being introduced to prove?  If it is to prove the  truth of the matter asserted, then it is hearsay and inadmissible.   Can the  evidence come in to prove something else? If not, are there any hearsay  exceptions that it can come in under? 6. Are there any 403 concerns? 1
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7. 105 limiting instructions 801(a)- Statement- A statement is 1.) an oral or written assertion or 2.) a nonverbal conduct of a person if it is intended by that person as an assertion. The following 2 are implied assertions: Nonverbal acts of assertion- Here you are actually making a statement (it can be hearsay) Ex. Raising your hand in class, nodding at an auction Non-assertive verbal conduct- it’s verbal conduct that is non-assertive, and is therefore, not hearsay. (if conduct is not intended as an assertion it cannot be hearsay). Ex. Zenni Case-
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This note was uploaded on 04/17/2008 for the course LAW ? taught by Professor Harmon during the Spring '08 term at Touro NY.

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EVIDENCE PART 2 - EVIDENCE PART II OUTLINE HEARSAY (Rule...

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