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10-29-09 Q___A_CB_163-164

10-29-09 Q___A_CB_163-164 - Q A CB 163-164 for student use...

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Q & A, CB 163-164 for student use only; do not copy or distribute p. 1 of 8 Questions for Classroom Discussion [p. 163-164] 1. ... [not assigned] 2. ... [not assigned] 3. Action by Plaintiff against Defendant for interference with contract. Plaintiff alleges that Defendant enticed Zed, one of Plaintiff’s customers, to switch its business from Plaintiff to Defendant by falsely suggesting that Plaintiff was going to declare bankruptcy soon. To prove that Defendant did this, Plaintiff wishes to testify that Zed told Plaintiff’s sales representative, “I’m switching because your future is uncertain.” Is Zed’s statement hearsay? No. Zed’s statement is not offered to prove that Plaintiff’s future was in fact uncertain, but to prove that Zed believed this to be true. That belief, in turn, makes it somewhat more likely that Defendant had made the false representation claimed by Plaintiff – that D had falsely told Z that P's future was uncertain. [The editors approve of the following reasoning: Because one must infer Zed’s belief from his statement, it is circumstantial evidence of Zed's state of mind, and thus not hearsay.] The whole trick in these cases is to perform the following trick: figure out how the statement can be relevant to a legally-material factual issue even if the statement was not true. Once you've figured that out, you're in a position to say that the statement was not offered to show the truth of the matter asserted.
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Q & A, CB 163-164 for student use only; do not copy or distribute p. 2 of 8 4. Same case. Suppose Zed’s statement had been, “I’m afraid you will be going bankrupt soon and won’t be able to fill our orders.” Is Zed’s statement hearsay? Yes. In this example, Zed is directly stating his state of mind (fear that Plaintiff would soon go bankrupt). It is thus hearsay if offered to prove Zed’s state of mind. (The statement will be admissible under the exception in Rule 803(3), but it is hearsay.) This question again illustrates the distinction between (i) statements as circumstantial [or elliptical] evidence of states of mind, and (ii) statements as direct [or non-elliptical] evidence of states of mind.
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