Evidence Notes File 3-A

LAW 6330 (4 credits)
Professor Pedro A. Malavet
Fall 2012
Mondays and Wednesdays
3:00-4:50 p.m.
Room 285B

The Forest in Chapter III:

  • On our Initial Look at Hearsay, ask:
  • (1) Is the offered evidence relevant? [FRE 401] [FRE 402]
  • (2) Is the offered evidence hearsay? [FRE 801, et seq.]
    • (a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)?
      • [Remember the Non-Truth Uses]
      • —If "no", go to 403, if "yes" the evidence is presumptively inadmissible under FRE 802[a] unless FRE 802[b] leads to an exemption or exception.
    • (b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
    • (c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?
  • (3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]

Chapter 3 is about impressing upon the student that this analysis can be quite complex. Consider that you have to examine acts and statements in their context, in order to answer the hearsay question. Humans communicate in complex ways, therefore, you have to imagine the entire scene, rather than focusing on a cold transcript of what was said or done. Hence the casebook authors' references to "performances" or to the "performative aspects of the assertions and acts." [Click here for more on this].

(1) Is the offered evidence relevant? [FRE 401] [FRE 402]

  • Remember that only relevant evidence (FRE 401) is admissible (FRE 402), so you need to establish the evidential hypothesis that favors admissibility or the irrelevant evidence will be excluded under FRE 402 and the analysis of admissibility stops here.
  • Another issue that may be relevant here is conditional relevance. For example, the child's testimony in Problem 3-I at page 151, was only admissible after direct testimony of what the room actually looked like was offered AND it matched what the child had said. While this might also be classified as a 403 reliability question, I think it is better to look at it as a threshold relevance question.

(2) Is the offered evidence hearsay? [FRE 801, et seq.]

  • This is a difficult technical rules question. However, in simple terms, if the offered evidence is (1) within the definition of hearsay, and is not saved by an (2) exemption or (3) exception, it must be excluded under FRE 802, and the analysis of admissibility would stop here.
  • The analysis here goes like this:
  • (a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)?
    • If the answer is NO, then it is NOT hearsay and you move to the 403 question. (You may have to explain here however how the evidence is hearsay for one purpose but not hearsay for another.)
    • If the answer is YES you move to 801(d) and then to the other sections of chapter VIII to see if there is an applicable exemption or exception.
  • (b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
    • If the answer is YES, then go to 403.
    • If the answer is NO, move on in chapter VIII of the FRE.
  • (c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?

(3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]

  • Relevant and nonhearsay evidence may nonetheless be excluded under FRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice. This is particularly so when faced with a mixed relevance question, i.e., the evidence can be used to prove several things, some of which are permissible non-hearsay (or an "not-hearsay" exemption (FRE 801(d)) or an exception (FRE 803, 804), and some which are inadmissible hearsay. The balance between legitimate and illegitimate uses must be weighed under FRE 403.
  • Other matters to keep in mind here is that you may require a limiting instruction if you allow the evidence to be admitted.

Big Question:

  • (1) Is it Hearsay;
  • (2) Is it Admissible, regardless of the answer to No. 1?

Why Exclude Hearsay?

  • (1) The absence of cross-examination
  • (2) The absence of demeanor evidence
  • (3) The absence of the oath

Why do we distrust Hearsay? Four Risks:

  • (1) Risk of Faulty Memory
  • (2) Risk of Misperception
  • (3) Risk of "Ambiguity" or "Faulty Narration."
  • (4) Risk of Distortion

Note that the solution is to favor in-court testimony.

Rule 801. Definitions

  • (a)  Statement. “Statement” means a person’s [1] oral assertion, [2] written assertion, or [3] nonverbal conduct, if the person intended it as an assertion.
  • (b)  Declarant.  “Declarant” means the person who made the statement.
  • (c)  Hearsay.  “Hearsay” means a statement that:
    • (1)  the declarant does not make while testifying at the current trial or hearing; and
    • (2)  a party offers in evidence to prove the truth of the matter asserted in the statement.

MALAVET: "Hearsay" is [c-1] a statement, [c-2] which is not made by the declarant while testifying at the current trial or hearing, [c-3] offered in evidence to prove the truth of the matter asserted.

Rule 802. Rule Against Hearsay

  • [a]  Hearsay is not admissible
  • [b]  unless any of the following provides otherwise:
    • [1] a federal statute;
    • [2] these rules; or
    • [3]  other rules prescribed by the Supreme Court.

Note that there are exceptions in the Rules of Evidence, and

  • in other Rules, e.g. FRCP 32 (admissibility of deposition transcripts in court proceedings)); and
  • statutory exceptions e.g. 18 U.S.C. sec. 4245 ("certificate by the Director of the Bureau of Prisons stating that there is probable cause to believe that a convict is mentally incompetent at the time of trial 'shall be prima facie evidence of the facts and conclusions certified therein.'")).

3.1 Defining Hearsay (Skip Wright v. Tatham, but read the notes that follow it)

  • [CB] A simple definition. To put it about as simply as it can be put, hearsay is an out-of-court statement offered to prove the matter asserted-or as lawyers usually say, "offered to prove the truth of the matter asserted." [See also] [FRE 801] [FRE 802] Assume that plaintiff Abby wants to prove that the blue car ran a red light, and that she calls Faraway to testify that he heard (but did not see) the accident and heard Bystander (who did see the accident) say shortly thereafter, "the blue car ran a red light." Here Bystander's statement is being offered (through Faraway's testimony) to prove what it asserts-that the blue car ran a red light-and it is hearsay.
  • [CB] The result would be the same if the party calls Faraway in order to lay the foundation for a letter he received from Bystander, in which Bystander wrote that "the blue car ran the red light." When the letter is offered in evidence, it too amounts to an out-of-court statement of Bystander. It too is offered to prove what it asserts, and it too is hearsay. (Nor would things be different if Faraway testified to what he read in the letter from Bystander, for again Bystander's out-of-court statement is offered to prove what it asserts. *** [FRE 1002 (Codifies Common Law Best Evidence Rule] [FRE 1001--Definitions] [See Ch. 14: Best Evidence].
  • [CB] [Note that if the maker of the out-of-court statement (the declarant) testifies, he or she must testify to their observations, not about their prior statements:] Now there would be no hearsay objection, for Bystander is saying in court what he knows and remembers
  • [CB, Fn.] [However, IF the witness were to testify as to what he/she SAID:] 1. The hearsay objection might reappear, however, if for some reason Bystander answered the question by testifying, "I told Faraway that the blue car ran the red light." The problem is that once again Bystander's out-of-court statement is being offered in proof of what it asserts, even though now that statement is proved by Bystander's own testimony. Therefore, under our one-line definition Bystander's answer is hearsay.
  • [CB] Note that our focus for now is on recognizing hearsay, not on deciding whether it is admissible. Much that is hearsay is still admissible, and much that is not hearsay is not admissible anyway. Yet it is necessary to be able to recognize hearsay because of the general principle, central to Anglo-American evidence law, that hearsay evidence is inadmissible unless it falls within one of many exceptions. Rule 802 states that general principle and hints at the exceptions. But for the time being our only concern is to get straight what hearsay is.
  • [CB] Reasons to exclude hearsay. Why do we so often exclude hearsay? Three reasons are usually given:
  • [CB] First and most important is the absence of cross-examination.
  • [CB] Second is the absence of demeanor evidence. The out-of-court declarant (Bystander in our example) is not under the gaze of the trier of fact, at least at the time he speaks, so the trier lacks those impressions and clues which voice, inflection, expression, and appearance convey.
  • [CB] Third is absence of the oath. Usually the out-of-court declarant was not under oath at the time he spoke (as of course Bystander was not, in our example), so the trier of fact has no indication that he felt any sense of moral or legal obligation to speak the truth.

Note that the adversary system prefers to be lied to in person.
[Prof. Malavet]

  • [CB] These three reasons for the hearsay doctrine express a clear preference for live testimony over out-of-court statements.
  • [CB] there are four "hearsay risks" associated with out-of-court statements that are substantially reduced (though certainly not removed entirely) by the safeguards of the trial process:
  • [CB] First is the risk of misperception. Maybe the car Bystander saw was not blue but silver; maybe what he thought to be a red light was glare from the sun; maybe the light changed after the blue car entered the intersection.
  • [CB] Second is the risk of faulty memory. It is true that if Bystander related what he saw only moments after the event, his observation is not likely to suffer in accuracy on account of failed or faulty memory.
  • [CB] Third is the risk of misstatement, perhaps most often called the risk of "ambiguity" or "faulty narration."
  • [CB] Fourth is the risk of distortion (whether conscious or unconscious) and outright deliberate lying or deception, or (to put it in the customary and more gentle way) the risk of insincerity or lack of candor.

Problem 3-A: Three See a Robbery

Introductorily, I asked you if the statements were relevant. If you think of a proper Evidential Hypothesis that supports the relevance of each statement, it becomes much easier to understand if it is being used to prove the truth of the matter asserted. I have inserted the statements in red to contextualize the answers.

  • We [the authors] think all three statements are hearsay under any sensible definition, though some commentators think FRE 801 would permit the statement by Oblique ("they ought to put Higgins in jail") and perhaps even the one by Sirchev (Higgins "went out of here carrying money bags") to escape through definitional cracks.

  • 1. That Plaintalk said, with reference to the robbery and to defendant, "Higgins is the one who did it";
    • [A] 1. Direct statement of the point to be proved. Plaintalk's statement ("Higgins is the one who did it") asserts directly and literally the very point sought to be proved. Here we have just plain hearsay, fitting FRE 801(a)-(c) in letter and spirit.
  • 2. That Sirchev said, again with reference to the robbery and to defendant, "That fellow Higgins went out of here carrying money bags";
    • [A] 2. Statement of a Circumstantially Relevant Point. Sirchev's statement ("That fellow Higgins went out of here carrying money bags") is hearsay because it tends to prove Higgins robbed the bank only if taken as proof of what it asserts on its face (Higgins went out carrying money bags).
    • Sirchev's statement is hearsay even though a wooden reading of the one-line definition (statement offered "to prove the matter asserted") suggests otherwise (so does a wooden reading of FRE 801).
    • In other words, technically speaking, the statement is not been used to prove the truth of the matter asserted, i.e., that defendant was seen carrying money bags, but rather to prove that he committed the robbery. Such a technical reading of the Rule is inappropriate.
  • 3. That Oblique said, once again with reference to the robbery of BankSouth and to defendant, "they ought to put Higgins in jail for this, and throw away the key."
    • [A] 3. Indirect Assertion of Point to be Proved. Oblique's statement ("they ought to put Higgins in jail for this, and throw away the key") amounts to an indirect (oblique) assertion that Higgins robbed the bank. By any reasonable construction, Oblique intends to assert that point, though his words do not literally say it.
    • The statement is hearsay even though the words on their face assert something other than the point to be proved.
    • The authors are correctly getting you to read "truth of the matter asserted" in an inductive manner, rather than in a narrow deductive manner. [FRE 801] The authors explain: "Because of these realities it makes no sense to read human expression too literally in applying the hearsay doctrine."
    • As I mentioned in class during the Fall of 2004, the other side of this warning coin is that "sometimes a cigar is just a cigar," or, in less Freudian terms, sometimes an assertion is just an assertion.
    • Note that the statements are hearsay, especially when viewed through a liberal inductive lens. Moreover, that means that they must be excluded, [FRE 802], unless an exception can be found expressly allowing their admissibility. In the absence of the unavailability of the declarant, such an exception is unlikely under the facts of this problem.

Non-Verbal Assertions: Assertive Non-Verbal Conduct

    • [CB] Hence any reasonable definition of hearsay must embrace assertive conduct when offered to prove the point asserted. There has never been much doubt on this score, and obviously Rule 801(a) embraces such conduct, since its definition of statement includes "nonverbal conduct of a person, if it is intended by the person as an, assertion." Perhaps the most common instance of such conduct involves use of one of the standard nonverbal cues --nodding or shaking the head or shrugging the shoulders in answer to a question, pointing as a means of identifying or selecting.

Problem 3-B: Kenworth and Maserati

    As proof that he had the light in his favor,
    Phillip offers to testify that the truck pulled forward across the pedestrian lane into the intersection before he (Phillip) stepped on the accelerator.
    • Advance [Hillary's] argument that evidence of the movement of the Kenworth is hearsay, when offered for the stated purpose.
    • The behavior of the truck driver seems nonassertive: Testimony that the truck moved forward from a standing stop at a controlled intersection suggests that the driver saw the light turn green and proceeded. [Thus, it is relevant. [FRE 401] [FRE 403]] Apparently he did not "imply" anything in the strong sense (he didn't intend to express or communicate any point about the light), [FRE 801] but of course his conduct "implies" that the light turned green in the narrow sense of suggesting that fact, and the trier could reasonably draw this inference from the proof. If the hearsay doctrine embraces only statements and their equivalent, where the speaker/actor seeks to convey (communicate or express) an idea, then what the truck driver did is not hearsay.
    • The result then is that the evidence is relevant and not excludable under the hearsay doctrine because the trucker did not intend it to be assertive, he was just moving his truck. However, if you can convince the judge that the trucker was being assertive, then she could call it hearsay.
    • As a matter of substantive law, you are probably required to keep a proper distance from the truck and to make your own observation regarding whether or not the light is green or red. Nevertheless, as a matter of causation, if the light was green, you had the right of way, so Phillip's failure to look for himself would not have been the proximate cause of the accident.
    • The bottom line on assertive conduct vs. non-assertive conduct, or just plain conduct, is that whatever you can convince a judge was intended by the actor as an assertion is assertive conduct. Hence the perhaps far-fetched examples.

Malavet on The Drag Racing Scenario

  • Let me posit another scenario:
    • Phillip arrives at the intersection of 34th Street and University Avenue traveling from East to West (towards the Mall) on the left-most lane of the two that travel in that direction. On the right lane is Hillary in her corvette. They are stopped at the traffic light, directly in front of you. They appear to look at each other and they both revved their engines loudly. When the light turns green they both "burn rubber" in front of you.
    • Was their conduct intended to be "assertive"? If so: (1) to whom; and (2) to say what?
  • As I mentioned in class, I can easily conceive of a judge allowing the revving evidence to constitute assertive conduct showing Phillip's and Hillary's intent to race, in a criminal trial charging them with racing or injuring someone while racing. I can also easily conceive of the court doing the same in a tort trial in which they were parties (to show intent to commit a tort requiring specific intent). Thus, the evidence becomes technically subject to the language of FRE 801(a)-(c), but specifically defined as not hearsay by 801(d)(2).
  • But, I will confess that --despite my attempts to prove otherwise in class-- I find it difficult to conceive how in the real world the conduct in either the Truck or the drag-racing example can be described as having been INTENDED to assert that the light was green. Thus, it would not be hearsay at all, meaning that if relevant, and it IS relevant, it would be admissible.
  • However, one of the nice things about being a law professor, is that I get to generate the assumptions, and your come up with the supporting arguments.
  • If we were to classify it as hearsay, and neither Hillary nor Phillip are a party, then I agree with Mr. McGowan that the best chance of admission is 803(1) present sense impression. It goes like this: Hillary and Phillip intended their conduct to assert that the light was green. They are not parties to the case, so you are describing their conduct in your trial against the person that broad-sided you after you went into the intersection behind Phillip and Hillary. The assertive conduct would be a hearsay statement, but the statement would be admissible because it was their present-sense impression of the situation (i.e., the light changed from red to green).
  • Keep in mind that the distinction between assertive conduct, which is subject to the hearsay rules because of the language of FRE 801(a)(2), and non-assertive conduct, is the intent of the actor. Anyone observing the conduct can legitimately get a message out of the conduct, as long as that was the intent of the party.
  • There is one interesting twist in this area and that is coded-conduct. "Two knocks means they are here, one knock means they are gone." Here the intent is not what an average person would think, but rather what the parties agreed for it to mean. This requires someone with personal knowledge of the code.

A Possible Approach to the Drag-Racing Scenario

  • 1. Evidential Hypothesis or Fact-pattern:
    Through their conduct, Phillip and Hillary intended to assert that the traffic light was green (i.e., this was assertive conduct). Alternately, simply offer testimony that they went into intersection as evidence that the light was green (i.e., it is offered as non-assertive conduct).
  • 2. Relevance? FRE 401
    Moving into the intersection, after having been stopped at it for a red light, makes it more probable that the light had changed to green in their favor. (BTW, anyone who has ever seen a person drive straight into an intersection while their light was red, because they saw the persons in the lane next to them start to make a left turn using a turning arrow in the traffic light, knows that though relevant for this proposition it is not necessarily the ONLY conclusion).
  • 3. Probative Value substantially outweighed by the danger of any of the six (6) reasons stated in FRE 403?
    Probably not a problem, although the likelihood of unfair prejudice becomes higher if the evidence is admitted as an assertion.
  • 4. Is it Hearsay: FRE 801(a), (b) & (c)?
    This is only an issue if it is offered as assertive conduct OR if the opposing party objects to its admission by arguing that it is assertive conduct (theoretically possible but quite odd). If it is not offered or objected as assertive conduct, you need not go any further than item 3.
  • 5. Is it a statement, FRE 801(a)(2)?
    (a) the revving was intended to be assertive of the call/intent to race AND/OR (b) accelerating into the intersection ("burning rubber") was intended to be assertive of the fact that the light was green. Only "b" is admissible for the proposition indicated above, and, if intended as an assertion, it is subject to the hearsay exclusion (and again, I hasten to add that this is an extremely improbable set of facts).
  • 6. Declarants FRE 801(b)?
    Phillip and Hillary
  • 7. Truth of the matter asserted FRE 801(c)?
    If the proponent is seeking its admission as a statement to prove that the light was green, then yes. The opposing party would argue that any other reason is a mere pretext.
  • 8. FRE 802
    The "burning rubber"-as-statement that the light was green is inadmissible hearsay, unless you can find an exception.
  • 9. FRE 803(1)
    The exception. If it was a statement, it was a contemporaneous statement regarding the condition of the intersection made upon personal observation thereof by Phillip and Hillary.

Case Wright (Skip the case but read the notes, especially scroll down to my summary of the notes).


I find this case to be more confusing than helpful, so we are skipping it.

The bottom line here is that what is "necessarily implicit" in the statement is part of the statement for purposes of FRE 801. But the rule purposely rejects the overly broad definition of "implied" included in the Wright case and instead, as note 1 at page 114 states, uses it in the narrower sense of "intentionally suggesting" rather than merely "indicating" a particular fact or opinion.

  • [CB] 1. Baron Parke says the letters “imply[] a statement or opinion” of their authors and were offered to prove “the truth of the implied statements.” Obviously Parke did not mean “imply” in the usual strong sense of “intentionally suggesting.” Nobody thinks the Vicar’s purpose was to express or communicate that “Marsden is a man of sound mind.” If his letter “implies” this point, it does so in the weak sense of the term: It “indicates,” because of what it says and what it tries to do, that its author thinks one can do business with Marsden, so he must be of sound mind. That makes the Vicar’s letter different from Oblique’s statement in Problem 3-A ...
  • [CB] 5. Baron Parke’s opinion is famous for its specific holding—the letters are hearsay because they imply a statement that Marsden is sound. But Parke is even more famous for his broad account of what hearsay is, which may not be necessary to the outcome but is part of the underlying logic. ...
  • Malavet:
    • but the overly broad definition of "imply" over complicates the rule and in my opinion ignores the "intended as an assertion" proviso, still, please note defenses of a broad reading of "implicit" in the notes, and consider what the Pacelli case at page 142 says about the possible meaning of "imply" or "implicit" in the hearsay context.
  • [CB] 6. Under Parke’s view, Phillip (Problem 3-B) couldn’t prove the light was
    green by testifying that the truck started forward into the intersection. ... [Because Parke would treat the offer as requiring us to believe that the trucker implicitly stated that the light was green.]
  • Malavet:
    • Comparing notes 7 and 8 simply shows how complex this field can be. We have "verbal conduct" on the one hand, and "necessary implications" within statements on the other hand, and all kinds of other linguistic nuances (tricks of the legal trade) to complicate it all.

A summary of the Wright Case

  • [CB] Part of the proof adduced by George Wright was in the form of three letters written to Marsden before his death, all by persons who had themselves died before trial. One letter was personal in nature, but two others dealt with matters of business. One of the latter sort came from the Vicar of Lancaster, Oliver Marton, and it read as follows:
  • [CB] But the question is, whether the contents of these letters are evidence of the fact to be proved upon this issue,-that is, the actual existence of the qualities which the testator is, in those letters, by implication, stated to possess: and those letters may be considered in this respect to be on the same footing as if they had contained a direct and positive statement that he was competent. For this purpose they are mere hearsay evidence, statements of the writers, not on oath, of the truth of the matter in question, with this addition, that they have acted upon the statements on the faith of their being true, by their sending the letters to the testator. That the so acting cannot give a sufficient sanction for the truth of the statement is perfectly plain; for it is clear that, if the same statements had been made by parol or in writing to a third person, that would have been insufficient; and this is conceded by the learned counsel for [Wright]. Yet in both cases there has been an acting on the belief of the truth, by making the statement, or writing and sending a letter to a third person; and what difference can it possibly make that this is an acting of the same nature by writing and sending the letter to the testator?

What is the implication (assumption)?
How should it be proved?

  • [CB] Let us suppose the parties who wrote these letters to have stated the matter therein contained, that is, their knowledge of his personal qualities and capacity for business, on oath before a magistrate, or in some judicial proceeding to which the plaintiff and defendant were not parties. No one could contend that such statement would be admissible on this issue; and yet there would have been an act done on the faith of the statement being true, and a very solemn one, which would raise in the ordinary conduct of affairs a strong belief in the truth of the statement, if the writers were faith-worthy. The acting in this case is of much less importance, and certainly is not equal to the sanction of an extrajudicial oath.
  • [CB] The conclusion at which I have arrived is, that proof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible; and therefore, in this case the letters which are offered only to prove the competence of the testator, that is the truth of the implied statements therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly have been inadmissible.

Author's comments on Wright, with my comments.

  • Keep in mind that the letters are being offered to prove that the object of the letters was of sound mind. The letters do not say that the writers had observed Marsden behaving sanely, rather, the proponent argues that they were written in the assumption that Marsden was sane and are thus probative of that fact.
    The opinion concludes
    • (1) that as statements the letters are clearly hearsay and thus inadmissible, and
    • (2) that the proponent cannot avoid the label of hearsay by calling the letters non-assertive conduct (i.e., an act). This part of the opinion, however, may overly broad.
  • 1. Letter as statement. When a statement is offered to prove facts apparently assumed by the speaker, three of the four hearsay risks are present, and the fourth may be there too. We have the risk of ambiguity (if Marton expected only to reach people who might act for Marsden, his letter may not indicate that he thought Marsden competent); there is risk of misperception (Marton may have erred in thinking Marsden competent); there is risk of faulty memory (Marton may have forgotten encounters with Marsden that would affect his opinion of Marsden's competence). The fourth risk (candor or veracity) may appear if the writer was being untruthful (if Marton did not intend to do business with Marsden, despite the contrary indication in his letter, the letter gives a false indication that Marton thought Marsden competent). Indeed, if Marton lied, he may have lied to mislead people about what he thought of Marsden. [FRE 801]
  • Malavet:
    • Note that the good Vicar may have lied to avoid insulting an incompetent OR because he knew he was dealing with Marsden's "handlers." The idea that the letter might have been intercepted and used publicly seems far-fetched to me.
  • 2. Letter as behavior [letter as ACT]. In writing to Marsden proposing to do business, Marton made a commitment from which it would be awkward to withdraw. He did not make an offer of contract (to which he would be bound if Marsden had said "I accept"), but still Marton was approaching that point. Although the letter is verbal, still it has the quality of action which we see again in what Cartwright said to Lord in Problem 3-E (Whose Corn?) (page 146). Similarly the letter committed Marton to try to transact business with Marsden, for he did not talk idly about a transaction, but sought to get it going. This behavior implies that Marsden was competent to do business, and drawing the inference involves using Marton's words as nonassertive conduct.

3.2 Defining Hearsay: Assertive Conduct and the Sound of Silence

Case: Cain v. George ("The Sound of Silence").

  • [CB] Appellants contend that the trial court erred in allowing in evidence the testimony of the motel owners concerning the number of guests who had occupied the room where the deceased was found dead and who had made no complaints. This testimony was relevant on the issue, however, that carbon monoxide came from the smoldering chair and clothing and not from the gas heater. Such testimony merely related the knowledge of the motel owners as to whether anyone was ever harmed by the heater. It was not hearsay as it derived its value solely from the credit to be given to the witnesses themselves and it was not dependent upon the veracity or competency of other persons. This testimony of Mr. and Mrs. George was clearly the best available evidence to support their position that carbon monoxide did not come from the heater. We think it was admissible to show how the heater had acted in the past....
    [Judgment affirmed.]
  • RELEVANCE of No-Complaints [FRE 401]
    "[Carbon monoxide is indeed odorless]. But a person in a room with an improperly functioning gas heater would smell other byproducts of incomplete combustion, which produce an odor similar to that of automobile exhaust or smoldering wood."
  • [CB] You can see at a glance that Edith Harris cannot have firsthand knowledge of any of the facts set out in her answers, and it would appear that every one of them was in substance (though not in form) a repetition of something that was common knowledge in her house and that her parents might have told her in so many words. By that quite reasonable view, they are hearsay pure and simple.
  • [CB] Here a short digression is in order. Technically, "hearsay" is not quite the right objection to the answers given by Edith Harris, for she never refers to statements by others. The principle that would support an objection, if the system were administered in a wooden and unyielding way, would be that Edith lacks "personal knowledge." Rule 602 [But most courts would eventually get to the hearsay question, because your source of knowledge is hearsay. E.g., even if you were present at your birth, you cannot remember it, and you certainly cannot remember or really know the date. Hence FRE 803(13) and FRE 803(19).]
  • [CB] In short, the system tolerates testimony of the sort shown above even though the witness lacks personal knowledge and is, in substance, testifying to hearsay.
  • [CB] It is, of course, another matter altogether if a party seeks to rely on indirect hearsay to prove contested and substantial points in his case. Consider the following somewhat appalling example of an attempt to get in hearsay evidence indirectly.

c. Indirect Hearsay

d. Machines and Dogs

  • (FRE 801(b) supposes that only "a person" makes a "statement," doesn't it? Why?) Most courts would reject any "hearsay" objection to testimony as to what time it was based on a clock but would view the "screen read" as hearsay, when offered to prove price. Why?
  • Note also the cases regarding animal behavior.

Case: United States v. Check

  • [CB, towards the end of the first paragraph of the opinion] Cali refused to testify at the trial. *** The prosecutor, after establishing that Check and Cali had conversed and that Cali had thereafter returned to speak to Spinelli, inquired of Spinelli (as he would ultimately inquire of him at least twelve additional times): "Without telling us what Mr. Cali said to you, what did you say to him?" In response, Spinelli told the prosecutor, and also, of course, the jury, what he had purportedly said to Cali:
  • [This proved to be a very transparent attempt to introduce what Cali said.]
  • [CB] There is, furthermore, no doubt that the out-of-court statements uttered by Cali, audaciously introduced through the artifice of having Spinelli supposedly restrict his testimony to his half of his conversations with Cali, were being offered to prove the truth of the matters asserted in them. This conclusion follows inescapably from the fact that . . . the government constantly took the position at trial that the challenged portions of Spinelli's testimony avoided the proscription against the use of hearsay not because they were not being offered for the truth of the matters asserted but rather because they were Spinelli's own out-of-court statements and he was testifying in court and could be cross-examined. In other words, the government was apparently arguing that the out-of-court statements were admissible because they were somehow excluded from the definition of hearsay or qualified for some supposed exception to the hearsay rule.... A concession that Cali's statements would have been hearsay [as the government agreed] is an admission that the purpose for which the statements were being offered at trial (irrespective of whether they were to be regarded as Spinelli's or Cali's) [801(d)(1)(B)] ["I said"] was to prove the truth of the matters asserted therein.

The casebook authors summarize the rationale for the opinion as follows:

  • In substance, the testimony presents triple hearsay: Even though Spinelli testifies, what he said out of court to Cali is hearsay insofar as it proves what Cali told him; what Cali told him is hearsay insofar as it proves what Check said; what Check said is hearsay insofar as it proves what Check did or intended to do. ... Of course his statement is admissible under FRE 801(d)(2)(A) [party admissions]: That would permit Cali to testify in court that Check said he would "produce the cocaine tomorrow," but it does not permit the government to offer Spinelli's testimony that Cali said that Check had made that statement, as proof that Check made the statement. In other words, any problem with the third layer (what Check said) would disappear if Cali would only testify. The critical element is Cali's refusal to testify, and the prosecutor's overzealous attempt to vault this barrier by the artifice of pretending to offer only statements by Spinelli.
  • There are three categories of potential hearsay statements here:
    • (1) the statements by Check to Cali;
    • (2) the statements by Cali, as relayed by Officer Spinelli, regarding what Check told him; and
    • (3) the statements by Officer Spinelli, during his conversation with Cali. (The question about co-conspirator statements raises a possible fourth category, statements by Cali in furtherance of the conspiracy with Check, which might be admitted against Check under FRE 801(d)(2)(E)).


  • The statements by Check to Cali would be admissible, if offered using Cali's testimony (i.e., if offered by someone having personal knowledge of them, FRE 602). The full opinion explains that Officer Spinelli did legitimately testify to his own conversations with Check, i.e., Check's statements to Spinelli. These could be relayed because Spinelli had personal knowledge of what Check said, and the statements become admissible most likely as admissions under FRE 801(d)(2)(A).
  • The statements by Officer Spinelli about what HE said during the conversation, i.e., his testimony in the form of "I said" would likewise be hearsay under 801(a),(b) & (c). No exception is available, according to the court. As footnote 1 at page 124 of the casebook explains, he could testify as to his observations, but not as to his statements at the time he saw Cali and Check talk. That is hearsay, and thus excluded under FRE 802. The court expressly ruled this in the Check case, and further indicated that FRE 801(d)(1)(B), the prior consistent statement exemption, did not apply, because that can only be used for rehabilitative purposes, and only if the witness lacked a reason to fabricate at the time he made the hearsay statements.
  • The statements by Cali, as relayed by Officer Spinelli, regarding what Check told him. Note that the prosecutors are trying to prove the truth OF WHAT CHECK SAID TO CALI. The court found that what the prosecutor was doing was in fact trying to get Cali's description of his conversations with Check into evidence through Spinelli. In effect, Spinelli was becoming a second witness (Cali) to confirm his own testimony about conversations with Check. This cannot be allowed. They are clearly oral statements (FRE 801(a)(1)); the declarant is Cali (FRE 801(b)); and they are being used to prove the truth of the matter asserted, i.e., that Check in fact made the statements that Cali attributed to Check when speaking to Spinelli (while on appeal the prosecution repeatedly argued that it was not using them for the truth of the matter asserted, the court held otherwise) (FRE 801(c)). Again, no exception is available, according to the court, so they are not admissible because of FRE 802.
  • Co-conspirator statements. A student asked if the statements by Cali to Officer Spinelli might fall under the co-conspirator exemption of FRE 801(d)(2)(E). Footnote 37 of the court's opinion in fact suggests that the trial judge might have mistakenly admitted the statements precisely for that reason. However, the point was not argued by the prosecution because Cali, as an informant, was a government agent, and thus he was not a "true co-conspirator" for purposes of the exemption. Additionally, that was NOT the object of the opinion. The court was clearly more troubled by the very indirect use of Check's statements to Cali as-told-to-Spinelli than by Cali's statements to Spinelli. I will come back to this however when we cover the exemption, because it is an important question.
  • We will come back to this when we reach chapter Four. However, just by way of preview, note that statements TO undercover law enforcement officers or cooperating informants may be found to fit the exemption. But it is highly unlikely that statements BY a cooperating informant, like Cali, would be found to fit under the exemption to be used against Check.

Check and Litzau, the general rule, Obi, the exception

  • Check and Litzau, following Obi, represent the general rule that it is improper to admit secondary hearsay when the clear intent of the offering party is really to present another declarant's statements.
  • Obi, represents the exception. I want you to cross-reference this material when we discuss Crawford and its progeny in Chapter 4. It is especially relevant when you face a 911 call scenario in which the Operator's side of the conversation is technically not admissible but will often be allowed in order to place the statements TO the operator into their proper context.

The casebook authors explain Obi:

    • [Check and Litzau represent the general rule.] That said, please note that the Obi case allowed the testimony to be offered for the non-truth purpose of explaining why the officer investigated the defendant (a form of "effect on listener" as we will discuss next week), and then only because the danger of truth use was made quite low by overwhelming independent evidence of the defendant's guilt (plus the court stated that the objection had been weak and likely insufficient).
    • The text of the pertinent part of Obi, as redacted by the authors, with their commentary:
      • Obi also challenges the admission of hearsay testimony elicited from Detective Roberts to explain how he began investigating Sallah and Obi. Detective Roberts testified that he was introduced to Sallah by Adrian Eskridge, who was cooperating following a cocaine distribution arrest, and Sallah is reported to have stated he "knew some dude named Obi." Obi now contends that the evidence should not have been admitted because it prejudiced him unduly by connecting him in the mind of the jury to "known, incarcerated drug dealers." Our review of the record reveals that Obi did not preserve this objection for appeal. At most, he requested an instruction limiting the government's inquiry, which the government apparently followed to his satisfaction at trial.
      • But even if his objection had been preserved by his request for a limiting instruction and the government's compliance with his request, we have permitted the admission of hearsay testimony "offered for the limited purpose of explaining why a government investigation was undertaken." United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).
      • Obi relies heavily upon United States v. Williams, 133 F.3d 1048, 1052 (7th Cir. 1998), in which the court found a "strong possibility that the jury made improper use of the evidence introduced through [the FBI agent's] testimony, i.e., as concrete proof that Williams did indeed participate in the bank robbery." However, in that case, unlike here, there was "no corroboration offered as to the reliability or truthfulness of the informant's declaration. The identifications of Williams [were] weak at best, and it [was] obvious that the minimal evidence the government did have was bolstered by inadmissible hearsay and opinion testimony." Id. at 1053.
      • Here, in contrast, it cannot be said that the hearsay testimony was the de facto basis for Obi's convictions. The government introduced a substantial amount of evidence linking Obi and Sallah, including their meeting in the Montgomery County holding facility; Obi's admissions that he visited Sallah and vice versa; the many phone calls made between their phones over the course of the relevant time period; and the marked bills given to Sallah during the fourth drug deal and found on Obi's person at the time of his arrest.
      • Given that the hearsay testimony in this case was used for a purpose recognized as legitimate in this circuit and that there was strong evidence linking Obi to Sallah in this conspiracy, it was well within the discretion of the district court to have admitted the evidence.

3.3 Defining Hearsay [NOT!]: The Non-Truth Uses

3.3[CB] 2. When Is a Statement Not Hearsay?
[The Non-Truth Uses of Hearsay]

Note that these are common law doctrines that govern the interpretation of the definitional language in hearsay (FRE 801(a),(b),(c)). Thus I will emphasize in class that they are NEGATIVELY related to the definition of hearsay set forth in FRE 801(a), (b) and (c).

Types of "Not-Hearsay"

  • (1) Nonhearsay
    not within the definition
    [FRE 801(c)(2)]
  • (2) “Not Hearsay”
    exclusions from the definition by (Congressional) fiat;  hearsay, but not really
    [FRE 801(d)(1) & FRE 801(d)(2)] [FRE 802]
  • (3) “Exceptions”
    hearsay but admissible
    [FRE 802] [FRE 803] [FRE 804] [FRE 805, 806, 807]


  • [CB] Under FRE 801 a statement is hearsay when "offered to prove the truth of the matter asserted. " The negative inference invited by this definition is that a statement is not hearsay when offered for any other purpose. What other purposes can there be? There are many nonhearsay uses, but usually a statement offered for purposes other than proving what it asserts falls into one of the following six categories:
    • (1) impeachment,
    • (2) verbal acts (or parts of acts),
    • (3) effect on listener or reader,
    • (4) verbal objects,
    • (5) circumstantial evidence of state of mind, and
    • (6) circumstantial evidence of memory or belief. These categories are not listed in the Rules, but are well accepted by courts throughout the country as nonhearsay uses.

Note that while some of these exclusions can be expressly found in the rules, the majority are more logically negatively related to the Rule's definition of hearsay in FRE 801(a),(b)&(c). Most frequently, it is said that the evidence does not fit within FRE 801(c) (i.e., it fails to fit within the "truth of the matter asserted" language). Accordingly, such statements are deemed, i.e., legally presumed, not to be offered to prove the truth of the matter asserted because courts have ruled that under applicable substantive law or as a matter of common law, the matter is, for example, an element of the offense or claim, as is often the case with verbal acts. Alternately, the court might rule that the matter is not an assertion or that it is conduct that was not intended to be an assertion (often the case with ownership marks).

Non-Truth Uses
(1) impeachment [FRE 607] [FRE 613] [FRE 801(d)(1)(A)] [FRE 803(3)] [FRE 401] [FRE 403]
(2) verbal acts (or parts of acts) [FRE 801(a),(b) & (c)]
(3) effect on listener or reader
(4) verbal objects
(5) circumstantial evidence of state of mind, and
(6) circumstantial evidence of memory or belief.

I recommend that you read 11th Circuit Pattern Jury Instructions 5, 6.1 and 6.2 to help you to understand the proper use of Prior Inconsistent Statements.

Problem 3-C: "The Blue Car Ran a Red Light": Impeachment by Prior Inconsistent Statement

  • The Authors answer:
    Heart of the Matter. The objection should be overruled: Burton offers the statement not to prove what it asserts (the blue car had the light), but to prove that Bystander vacillated ("blowing hot and cold" as McCormick put it). Bystander made a prior inconsistent statement conflicting with his testimony, and the change in his story is contradictory behavior raising doubt about credibility. A skilled lawyer finds many ways to suggest why this vacillation makes him unbelievable. Abby can argue that Burton's purpose is pretextual, that he really wants the jury to take the prior statement as proof that Burton had the light, hence that it should be excluded under FRE 403 as posing too great a risk of "unfair prejudice" (misuse as substantive evidence).
    • If the statement had been offered to prove the truth of the matter asserted, it might fit within the "not hearsay" definition of FRE 801(d)(1)(A) (prior inconsistent statement), BUT ONLY IF GIVEN UNDER OATH IN A HEARING OR AT A DEPOSITION.
    • Since this one was given to the insurance adjuster, it does NOT meet the requirements for the exemption. The net result is that it is only admissible for impeachment purposes under FRE 607, 611, 613, but not to prove the truth of the matter asserted. Almost every court faced with these facts will allow it it to be admitted, so, do you ask for a limiting instruction?

Problem 3-D: "Any Way You Like": Verbal Act: Element of the Crime

Do you think that people often say:
"I will have sexual intercourse with you for __ dollars?" or

“Please, kind sir (or madam), sell me $20.00 worth of:
–“Heroin, a schedule I narcotic substance under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 USC § 801, et seq.”
–“Cocaine, a Schedule II narcotic substance under the …”
Drug Schedules Available at:
  • The Authors answer:
    The out-of-court statement is a verbal act because soliciting amounts to misuse of the premises. [FRE 801(a), (b) & (c)] If the state can show solicitation in the Gentleman's Massage Parlor, its can reasonably argue that proprietor Ratliff was using the premises in this way. The words of Debra ("you can have it any way you like") amount to solicitation. The problem illustrates in a quasi-criminal context the main application of the verbal act doctrine:
  • As a matter of substantive law, the words have "independent legal significance," which is to say that the law assigns importance to the fact that they were spoken. They have relevance independent of their assertive aspect.
    • Los Robles Motor Lodge, Inc. v. Department of Alcoholic Beverage Control, 54 Cal. Rptr. 547 (Cal. App. 1966). The court explained:
    • Solicitation for prostitution was the very fact in issue. The truth of the girls' statements was not important. The fact that they were made was. The declarations were admissible as original evidence. They were "operative facts." Section 1200, subdivision (a), of the [California] Evidence Code defines hearsay and expressly states that evidence is only within the hearsay rule which "is offered to prove the truth of the matter stated." Thus, the evidence here is not an exception to the hearsay rule; it is not within it.

Problem 3-E: Whose Corn?: Verbal Act: Element of the Contract

  • [CB] *** Now Lord sues Prager and the bank for conversion, claiming that the corn that the bank repossessed and sold was his share of Cartwright's crop. As proof, Lord offers his own testimony that he and Cartwright had gone to the field, where Cartwright "pointed out the corn in the double crib and said, 'Mr. Lord, this double crib of corn is your share for this year, and it belongs to you, sir.' " The bank and Prager object that Lord's description of what Cartwright said and did was hearsay.
  • [CB] As proof that the corn in the double crib was indeed the corn covered by its security interest, the bank offers testimony by its loan officer that "when we came out to see about selling the corn, Cartwright told us that the corn in the double crib was his." Lord objects that the loan officer's description of what Cartwright said and did was hearsay.
  • [CB] Assume that if the bank got the wrong corn, both Prager and the bank are liable to Lord for conversion. [Note also that this means that the bank's subjective belief regarding the ownership of the corn is not relevant.]

The Authors' Answers, with my comments.

  • First, is tenant Cartwright's statement to Lord hearsay? *** Second, is Cartwright's statement to the bank officer hearsay?

Bottom Line:
Lord's Statements are NOT hearsay.
Bank Officer's statements ARE hearsay.

  • The words also assert that the corn belongs to Lord, but this aspect of the statement is not critical: The statement has legal significance (conveying corn, performing the contract) independent of the assertive aspect, so it is properly viewed as a verbal act (or verbal part of the act of pointing out the corn being conveyed).
  • Cartwright and the Bank have a contractual relationship too, in which Cartwright borrowed money which he promised to repay. He pledged the corn to be grown (the 60% not committed to Lord) to the bank as security. But Cartwright's statement to the loan officer did not perform the contract or effect a conveyance to the bank, for there is no indication that Cartwright was conceding default and telling the officer that the bank could claim and sell the collateral. Hence probative worth depends on assertive aspect, and the statement is hearsay.
  • As was true of Debra's words to Wallis (Problem 3-D), content of Cartwright's statement to Lord matters. ***
  • The problem tracks a famous decision in which the Minnesota Supreme Court held that the statement by tenant Schrik to landlord Hanson was not hearsay, but that the statement by Schrik to the cashier of the bank was hearsay.
  • Hanson v. Johnson, 201 N.W. 322, at 322-323 (Minn. 1924).

More on Verbal Acts doctrine:

  • The authors explain:
    • "Here is a good place to illustrate another application of the verbal act doctrine -- spoken words having logical significance independent of their assertive value, even though substantive law does not vest them with such significance. Take the old chestnut about the car wreck: Man and wife in car; car strikes bridge abutment; both die. Rights of surviving children or relatives may be affected if one of the decedents survived the crash momentarily and died after the other."


Let me give this definition of the "Verbal Acts" exclusion from hearsay:
—words, spoken or written, having legal or logical significance independent of their assertive value.

  • Using the authors' example above, assume that, as proof that the wife survived, evidence is offered that a woman's voice was heard saying "Help Me." The content of the statement is not important, rather, the fact that the woman in the car could talk, indicates that she was alive. The absence of a statement from the husband suggests that he was dead. The result would be the same even if she had said "I am alive!". It is not the content that is important, but merely the fact that she was capable of speaking at all.