Evidence Notes File 3-Quiz

LAW 6330 (4 credits)
Professor Pedro A. Malavet

Hearsay Quiz Answers

Your casebook authors have crafted an extensive hearsay quiz. I suggest that you try to answer all questions in the quiz, some under timed and some under un-timed conditions. After you answer the questions, grade yourself using the authors' answers.

These are the answers drafted by the authors of your casebook without any comments from me.

I first post Hearsay/Nonhearsay answers for each question, without explanation.

But then I give you some of the commentary prepared by the authors of your casebook.

As I mentioned in class, I am adding some additional notes and commentary on the quiz now that you have had a chance to study it on your own. I have been very pleased by how you all have worked through these problems on your own, and then come to me with your specific questions on the matter. That is exactly what the quiz is for.

TRIAL EXAMPLE

If you want to see an example of how this played out in a real trial, the casebook authors supply a "Demo" that is posted on the course Mediasite channel. Here is how they explain what is happening:

AUTHORS

Trial Video 3 could be shown here (Conrad Murray Trial) (1 Minute):  In short clip, which shows an apparently minor moment in the trial, the defense lawyer Nareg Gourjian tries to “sneak in” positive character testimony by getting a witness to say that one of his employees (a) referred to the defendant as “a really nice and respectful person,” and (b) said that defendant “invited [the employee] back to his office,” and (c) reported that everyone else “treated him like crap,” and (c) that this employee’s experience with defendant was different.  The prosecutor repeatedly raises hearsay objections and the court repeatedly sustains the objections and strikes the answers or blocks the responses.

Answers in Brief

• 1. Nonhearsay
  2. Nonhearsay
  3. Hearsay
  4. Nonhearsay
  5. Nonhearsay
  6. Nonhearsay
  7. Hearsay
  8. Nonhearsay
  9. Probably hearsay (close)
  10. Nonhearsay
  11. Probably nonhearsay (close)
  12. Hearsay
  13. Hearsay
  14. Nonhearsay
  15. Nonhearsay
  16. Hearsay
  17. Hearsay
  18. Hearsay
  19. Nonhearsay
  20. Nonhearsay
  21. Hearsay
  22. Nonhearsay
  23. Nonhearsay
  24. Nonhearsay
  25. Nonhearsay
  26. Probably Nonhearsay (close)
  27. Nonhearsay
  28. Hearsay
  29. Nonhearsay
  30. Nonhearsay
  31. Hearsay
  32. Nonhearsay
  33. Nonhearsay
  34. Nonhearsay
  35. Hearsay

Discussion

(I have opted to give you the discussion for all of these from the 8th Edition of 2015).

1.  Nonhearsay.  B’s statements (telling friends that he was Woody Allen) is circumstantial evidence of state of mind, as in Problem 3-H (Anna Sofer’s Will) (page 140) and the Napoleon example in Betts.  The inference that B was non compos mentis does not depend on truth value.  Under either of two likely interpretations of what he says (does), his words indicate that he lacked capacity:  Either they show that B really thought he was Woody Allen, or they show that he went about saying something absurd while knowing it was absurd.  Since his words indicate lack of capacity regardless who B actually thinks he is, their relevance does not depend on a hearsay use.  (If proponent’s purpose were to prove that B really thought he was Woody Allen, his words saying so would be hearsay, but they would fit FRE 803(3).  And even if B’s verbal behavior raises doubt about his capacity, he still might be sane enough to do a will – which requires only that he know the nature and extent of his property and natural objects of his bounty.  In short, B’s statement is relevant and nonhearsay when offered to show incompetence, but it is not necessarily dispositive.)

2.  Nonhearsay.  Words offered to prove effect on listener (D’s statement to C about the brakes being bad shows that C was warned before getting in D’s car).  Similar to Problem 3-F (“I’m from the Gas Company”) (page 137).

3.  Hearsay.  The words of E assert that he is an agent of All-Cure Drugstore, and are offered to prove that point.  With additional facts (like proof that E does this thing all the time, and proof that All-Cure knew or should have known what E was doing), the words might be part of the evidence showing ostensible authority, and as such they would be “verbal acts” having independent legal and logical significance (hence nonhearsay).  But without additional facts, the words only have probative worth on the agency question if taken as proof of what they assert.  Again similar to Problem 3-F (“I’m from the Gas Company”) (page 137).

4.  Nonhearsay.  Lying to a police officer in an attempt to cover up another’s crime is likely to be itself a crime, so G’s behavior may be viewed as an act and treated like nonassertive conduct.  See Problem 3-J (“My Husband is in Denver”) (page 148), as well as Anderson (page 149) and Pedroza (page 150). 

5.  Nonhearsay.  When a person gives physical expression to an emotion apparently beyond his power to control (fright, grief), his behavior seems involuntary and lacking in assertive intent, so there is no “statement” or “assertion” under FRE 801(a).  See Gwinn (page 125).  There is a possibility of deception (what seems involuntary and unreflective might be contrived), which is a real risk, but we can rationally decide in most cases whether the conduct really is reflective and contrived.  We run such risks whenever we admit proof of what looks like nonassertive conduct, offered in support of the two-step inference (act reflects belief; belief reflects acts, events or conditions in the world).  It is, for example, always possible that Phillip, when he drove forward across the intersection, intended to express or communicate that the light had changed to green.  See Problem 3-B (Kenworth and Maserati) (page 116).  We take this risk in that context, and should accept the risk here.

6.  Nonhearsay.  L’s words to M (essentially “K entered the building”) are verbal markers – here they mark a point in time rather than an object.  The testimony of L that he saw K enter provides nonhearsay evidence that K entered.  When L testifies that he mentioned to M (ten minutes after the fact) that he’d seen K enter, he establishes a connection in time between the event of K entering and the event of L speaking.  When M testifies in court from present memory that it was “just past midnight” when L spoke, M establishes the time of L’s statement, which in turn establishes the time K entered.  The example is the barmaid’s statement in Problem 3-G (Eagle’s Rest Bar & Grill) (page 138).

7.  Hearsay.  O repeats in court his prior statement, which is offered as proof of what it asserts – that N committed the crime.  The point that a statement is hearsay if offered for its truth, even if the declarant testifies to the statement, is made in the text (page 112, footnote 1).  Since O does not now say the person he previously identified did the deed, the verbal marker logic of the barmaid’s statement in Problem 3-G (Eagle’s Rest Bar & Grill) (page 138) does not apply.  Of course the statement would be “not hearsay” under the “statutory magic” accomplished by FRE 801(d)(1)(C), if O is cross-examinable about it.  See the description of the statutory magic of FRE 801(d)(1) (page 144) and the material exploring his provision in the next chapter (pages 166-188). 

According to the authors, the difference between No. 6 and 26 on the one hand, and no. 7 on the other, is what is missing from no. 7. The trial testimony by O that "I picked N out of the lineup as the one who did it," is the equivalent of saying: "I told the police at the lineup that N was the one who did it." Since it is a statement, offered to prove the truth of the matter asserted, i.e., "N did it", it is hearsay.

For it to become nonhearsay, as in No. 6 and 26, you need more information (which, on my first reading of the problem I frankly assumed).

IF O testifies that N, the person in the courtroom is the person he saw at the scene of crime and at the lineup, then it becomes what O observed and did, rather than what he said, which would not be hearsay.

IF Officer X testifies that she was at the lineup and that O identified N as "the one who did it," then that would become a verbal marker, and thus nonhearsay.

To be honest, I think that this one is too hard.

Requiring the student to look at this in such a vacuum is not the way I would approach it. I would explain the "missing" testimony. I don't have a problem with the assertive conduct/verbal act part of it, but I do have a problem with requiring a student to approach the reading of the problem and the answer in such a narrow fashion.

The casebook authors switched the answers to 8 and 9, I have switched them back in these notes (Sunday, September 18, 2011).

8.  Probably Hearsay (close case).  On the side of hearsay treatment for Q’s parting statement (“Very nice to meet you”), one might say that Q is implying in the strong sense that it was her first encounter with P, in which case Q’s statement is like Oblique’s statement saying that “they ought to put Higgins in jail for this,” in Problem 3-A (Three See A Robbery) (page 114).  Or alternatively (still on the side of hearsay treatment), one might say that Q hasn’t actually said it was their first meeting, and we are in the area of statements offered to prove matters assumed by the speaker, similar to the Krulewitch case where one of the arrested women said “It would be better for us two girls to take the blame than Kay because he couldn’t stand it, he couldn’t stand to take it.”  Krulewitch called it hearsay (pages 155).  Taking the other view (that the statement is not hearsay), one might stress the performative aspect of social pleasantries that are almost automatic:  “Very nice to meet you” are words that serve a similar function to holding the door open for someone laden with packages or beckoning for a pedestrian to cross in front of a car, and it supports an inference not so much because of what it says (literally the speaker is happy to have met the other) but of what it does (compliment the person in the customary fashion when parting company after having met for the first time).  Here (unlike the eviction notice in Singer), the performative aspect is small.  On balance, we’d call it hearsay. 

9.  Nonhearsay.  The action of the college in placing R in a fourth year French course during her freshman year is best viewed as nonassertive conduct by the institution (or French department or professor).  Of course there is an assertive aspect:  Whatever form the notice takes, enrolling a student in an advanced French course requiring an “application” constitutes a statement that R’s credentials (revealed in the application) adequately prepares R for the course.  But accepting the application is also an institutional act putting R in the course, and that’s the main point.  Baron Parke in Wright would call it hearsay, but FRE 801 rejects this view.  The conduct here is largely verbal in nature, but that does not matter, and again the paradigm is the eviction notice in Singer (page 146). 

10.  Nonhearsay.  These are words offered to prove effect on hearer.  T’s statement to S is a threat, which suggests that whatever S did thereafter was under the influence of the threat.  Like Problem 3-F (“I’m from the Gas Company”) (page 137).

11.  Probably Nonhearsay (another close case).  Joining a single-issue organization can be fairly described as an assertion – an act intended to express and to communicate to the world the joiner’s viewpoint.  This example fits one interpretation of Pacelli (page 151), where actions by friends of Beverly Pacelli in coming to the meeting she convened could be interpreted as purposeful expressions of belief that Vincent committed murder.  That joining an advocacy group can be viewed as a statement is revealed in one of the ways that we speak about such things:  We could readily say that joining Mothers Against Drunk Driving is a “statement” that the joiner believes we need to do more to penalize drunk driving.  On the other hand, formally affiliating with an organization is also a behavioral step that does not, on its face, say anything at all.  If it’s not an advocacy group, joining is not much of a statement.  (Joining the “book of the month club” does not as convincingly “say” that one believes in reading as joining Mothers Against Drunk Driving asserts that penalties for driving drunk should be strictly enforced.)  Even the message of an advocacy group might be so mixed that the act of joining wouldn’t support certain kinds of conclusions.  (Thus joining the American Association of Retired Persons can’t really be a “statement” that social security benefits should be strengthened, although the group is an advocacy group, and is likely to advocate such a position, and joining is likely to signify that one who joins does hold this view.)  Even if Mothers Against Drunk Driving is a single-issue group such that joining can be realistically viewed as a “statement” that the joiner thinks we should do more about drunk driving, still it is more than a statement, just as evicting a tenant in Singer is more than a statement that the tenant lives on the premises.  Either hearsay or nonhearsay treatment can be defended here.  We would opt for nonhearsay treatment.

12.  Hearsay.  W’s conduct (going to the drawer, fetching the pistol, handing it over), when viewed in light of the Officer’s question, is W’s assertion that V owns the pistol.  Indeed, W’s conduct only tends to prove the point if it is interpreted as his assertion of the point itself.  As in the Caro case (informer points out his source to law enforcement officers) (page 115), this purely assertive conduct is hearsay.

13.  Hearsay.  When X said at 10AM “It should stop raining in the next hour,” the proposition that it is raining now is so close to the obvious intended meaning of the statement that we can be confident that X really means to express or communicate that it is raining now.  What X said is like Oblique’s statement that “they ought to put Higgins in jail for this,” in Problem 3-A (Three See A Robbery) (page 114).

14.  Nonhearsay.  The prosecuting attorney’s statement telling Y that he had probable cause to arrest Z fits the category of words offered to prove effect on hearer.  The closest example is Problem 3-F (“I’m from the Gas Company”) (page 137).

15.  Nonhearsay.  This example assumes a gradeschool bet, not one requiring the person making the bet to “beat the spread” (A wins the bet if Georgetown wins the game; A loses if Georgetown loses the game).  Here is one of Baron Parke’s examples from Wright (page 118):  Parke would treat it as hearsay because that is how he treats all acts, offered for the two-step inference – to prove actor’s belief in fact, hence the fact itself.  But parting with money involves a physical act that involves (quite literally) personal cost, and the act is mostly nonassertive.  One who pays off his debt may be acknowledging his loss, but he bet on the other outcome and would prefer not to express anything except his duty to pay.  Parting with money changes A’s position (he is that much poorer).  If anyone has acted on a belief, A has.

16.  Hearsay.  The verdict convicting B of bank robbery, proven in other proceedings, represents the prior jury’s statement that she committed the prior robbery.  Of course a verdict is also an act, every bit as much as the act of the landlord in Singer (page 146) in sending the eviction notice, and the act of Barbara in Problem 3-J (“My Husband is in Denver”) (page 148):  The consequence of the verdict is not (as in Singer) getting rid of a tenant, nor (as in Problem 3-J) throwing police off the scent.  Rather, the consequence of the verdict is throwing defendant in jail.  Jurors don’t risk punishment for false verdicts – jurors have even less at risk than Barbara.  And probably incarcerating a defendant doesn’t matter as much to a jury as evicting the tenant matters to the landlord.  Still, a verdict is obviously an act – it is quintessentially performative speech.  Nevertheless – despite the strengths of the argument just described – the matter is settled in the profession:  We view verdicts (and judgments) as statements, if offered to prove the various points that must be “found” to justify the verdict or judgment (they are hearsay).  Of course several hearsay exceptions embrace judgments, so we treat them as hearsay but admit some of them for some purposes.  See FRE 803(22) & (23).  Of course we give judgments (sometimes even verdicts) res judicata and collateral estoppel effect too, but these are doctrines of procedural law, not principles of evidence (and usually giving a verdict or judgment such effect means foreclosing any contest, rather than using the verdict or judgment as evidence). 

17.  Hearsay.  C’s statement “Tomorrow I’m going to New Orleans” isn’t so much a prediction (as it would be if a seer peered into a glass globe and said “Tomorrow the Royals will win the World Series”) as it is a statement of intent.  Instead of saying “intend,” we generally use the present progressive as an expression that means “intend,” and the statement “Tomorrow I’m going to New Orleans” is the equivalent of “I intend to go to New Orleans tomorrow.”  (Using the present progressive helps convey certainty – “I’m going” makes it even more definite that the person is going than “I intend to go” because the latter sounds tentative – I “intend” right now to go, but who knows how I’ll feel tomorrow?)  Anyway, C’s statement should be likened to Plaintalk’s statement in Problem 3-A (“Higgins is the one who did it”) (page 114) because in common parlance the words mean intent.

18.  Hearsay.  D’s statement can be read as communicating indirectly that the brakes are bad, resembling Oblique’s statement in Problem 3-A (“they ought to put Higgins in jail”) (page 114).  Alternatively D’s statement can be read as communicating a circumstantially relevant fact – that indeed D thinks he ought to reline the brakes before anybody drives the car – and thus it resembles Sirchev’s statement in Problem 3-A (“Higgins went out of here carrying money bags”):  As in the case of the money bags, here the fact that the owner of the car thinks the brakes need fixing tends circumstantially to prove they do need fixing, so this statement (like Sirchev’s) must be taken as proof of what it asserts (D does think the brakes need fixing) before it tends to prove that the brakes really do need fixing.  Viewed this way, D’s statement is again hearsay:  Even though the state-of-mind exception would justify admitting D’s statement as proof of what D thought, that exception would not allow use of D’s statement to prove that indeed the brakes needed fixing (it is a fact “remembered or believed,” and FRE 803(3) cannot be invoked to prove such points). 

19.  Nonhearsay.  F’s letter a performative quality resembling orders placed by callers at drug-selling establishments.  See Headley and Long (page 148).  In the Problem, F sent money, thus changed his position like A in Question 15 (acting on his belief; putting his money where his mouth is).  It is not necessary to use the letter to prove that the book is pornographic, and using the words in the letter to prove this point is more problematic.  (If the letter says the book is “dirty,” the letter proves this point by asserting it.  We can’t be sure that F was only trying to buy the book because it was “dirty,” and can’t even be sure that C’s idea of “dirty” corresponds with the law’s idea of obscenity.)  In their performative aspect, however, F’s words initiate a transaction and have logical significance in suggesting that the book in question is on sale at this place, and for this more limited purpose the words in the letter should be viewed as not hearsay. 

20.  Nonhearsay.  Absent other indications, we can assume that H’s name and number came to be lodged in G’s cellphone directory because G entered it there.  This entry is a “statement” (words that communicate or express) that says at the very least “there is a person H who has this number that I am likely to call some day.”  But entering this information is also an act that G would not likely do unless he knew H (and thought he might call H some day).  Also G’s directory can be viewed as nonhearsay if it is shown that indeed H exists and that his phone number matches what G put in his cellphone.  If G knew H’s name and number, he probably knew H (the most likely explanation for such knowledge is G’s prior contact with H), and the entry in the cellphone directory resembles Sharon’s statement describing Zinder’s unusual bedroom in Problem 3-I (“A Papier Mâché Man”) (page 141).  If incoming calls are automatically added to the recipient’s directory, along with names (perhaps supplied by caller ID), the problem is even easier – the entry for H in G’s directory is proof that H called G at some point, which is at least some indication that G knew H (even though it could have been a misdirected call or even a blind solicitation of some kind – these being less likely explanations).  In fact courts generally treat as nonhearsay even handwritten notes referring by name to others, as proof of some association.  See Mueller & Kirkpatrick, Evidence §8.23 (5th ed. 2012).

21.  Hearsay.  J’s reenactment of an event is an attempt to communicate how the event occurred, and it is hearsay.  The Caro case comes to mind (page 115), where the co-offender pointed out his drug source to law enforcement officers – this is “assertive conduct,” hence a “statement” under FRE 801(a). 

22.  Nonhearsay.  Either L’s statement is a verbal act because L as the owner/lender can set the boundaries of authority by utterance, or L’s statement proves effect on listener K because L’s statement bears on what K reasonably understood about the scope of his authority to use the vehicle, which tends to prove that scope.  This example is similar to Problem 3-E (Whose Corn?) (page 136) or Problem 3-F (“I’m from the Gas Company”) (page 137).

23.  Nonhearsay.  L’s letter announcing his “last month” is a verbal act carrying out the terms of a contract, presumably a lease that lets the tenant terminate on one-month notice.  The example is similar to Problem 3-E (Whose Corn?) (page 136).

24.  Nonhearsay.  As in Cain (page 125), noncomplaint by persons who might be expected to complain if something was wrong tends to prove that nothing went wrong.  The fact that some customers did complain about a different problem with the stairs makes the situation more persuasive than Cain by showing that there was a place to which complaints could be taken, and that at least some people were bothered enough by the condition of the stairs to say something. 

25.  Nonhearsay.  As in Problem 3-I (“A Papier Mâché Man”) (page 141), here is “inside knowledge” for which the most plausible explanation is the experience that the knowledge reflects.  Who would know (correctly) that Starkie on Evidence is in the locked cage in the basement of the law library except somebody who had been there before?  Here as in all such cases there is risk (perhaps another told J that Starkie could be found in that location), but the obscurity of the book to anyone other than an evidence aficionado makes this explanation improbable. 

26.  Probably Nonhearsay (close case).  Both answers (hearsay and not hearsay) can be defended, with about equal strength.  The issues are explored with the matchbook in Problem 3-G (Eagle’s Rest Bar & Grill) (page 138).  In an obvious sense, the logo is hearsay – it says, inter alia, “This car is a Porsche” and it is offered to prove that point (it is hearsay).  But the hearsay objection can be gotten around in three ways:  First, we can resort to FRE 902(7), which simply slices through the hearsay objection by saying that we can take commercially affixed labels as proof of origin (the car has the Porsche logo so it was made by Porsche AG).  Second, we could have testimony by a knowledgeable person (maybe the manager of the local Porsche dealership, maybe an officer in Porsche AG) that every car that caries the logo “Porsche” is a Porsche.  Third, we can argue that a car that carries that logo in the place where we would expect to find the make of the car probably is that make because our universal experience is that only Porsches have that label (just as only Fords have the Ford logo, only Jeeps have the Jeep logo, and so forth). 

27.  Nonhearsay.  Here is a verbal part of an act, in which the words accompanying transmission of the check determine its legal effect – it is rent for April, not payment for damages.  Whether the words can have the intended effect may be another matter:  If tenant O had not yet paid his rent for March, and if the lease entitles landlord P to treat payments as credits against the earliest prior unpaid obligations, then he may well be permitted to do so.  That does not affect the hearsay analysis, though in such situations the words spoken by the tenant might be viewed as irrelevant or insufficient on account of the substantive principle that the lease term prevails in this situation.  This example is exactly like Problem 3-E (Whose Corn?) (page 136).

28.  Hearsay.  Here O’s backward-looking statement is only an assertion about a historical fact.  It comes too late and is unrelated to the act, so it cannot be viewed as a verbal act.  Similar to what Cartwright said to the bank officer in Problem 3-E (Whose Corn?) (page 136):  He said in substance “this corn is mine,” which simply asserted ownership – unlike the earlier words to Lord (in substance, “this corn is yours”), which conveyed title, the later statement (“this corn is mine”) is simply a claim or assertion of ownership.

29.  Probably Nonhearsay (close case).  Q’s statement to the nurse in the emergency room (“for god’s sake don’t let my boyfriend R near me!”) is best viewed as nonhearsay because of its strong performative quality.  Q is asking the nurse to help her avoid contact with R, and can reasonably hope that her words will lead to the nurse barring the door to keep R away or calling security if necessary.  The nearest analogy is the eviction notice in the Singer case (page 146).  One might argue for hearsay treatment in this way:  If Q was seeking medical care for injuries sustained in a recent beating by R (the problem does not say that), then in context her words are readily understood as a expressing fear of further harm and as purposefully stating that R had caused the harm that brought her to the hospital.  Read this way, her statement is like Oblique’s (“they ought to put Higgins in jail for this”) in Problem 3-A (Three See A Robbery) (page 114), or the statement by the arrested woman in Krulewitch (“It would be better for us two girls to take the blame than Kay because he couldn’t stand it, he couldn’t stand to take it”) (page 155).

30.  Nonhearsay.  The act of pointing by S, along with her live testimony describing the significance of the gesture (“that’s the direction the train was coming from”) and the police officer’s testimony describing the direction to which S was pointing (“west”), tells us by live nonhearsay testimony what exactly was going on.  Analytically, the case is the same as the barmaid’s statement in Problem 3-G (Eagle’s Rest Bar & Grill) (page 138).  Pointing amounts to a statement that the train is coming from the direction indicated, so it would be hearsay if probative worth depended on taking it as asserting that fact.  That would happen if S did not herself testify.

31.  Hearsay.  A credit report by Din & Broodstreet addresses the credit-worthiness of HiTechCorp.  Using it to prove that point is classic hearsay.  The case is like Plaintalk’s statement in Problem 3-A (Three See a Robbery) that “Higgins is the one who did it” (page 114).

32.  Nonhearsay.  The question is whether BankWest acted reasonably, and the proof is the poor credit rating that Din & Broodstreet gives to HiTechCorp.  The category is words offered to prove effect upon listener/reader.  Whether the bank was reasonable in refusing to extend credit is partly a function of information contained in such reports.  See Problem 3-F (“I’m from the Gas Company”) (page 137).

33.  Nonhearsay.  The situation is a standard illustration of nonassertive conduct.  As is true in Question 9 (putting student in advanced French class), the action (assigning R to the intensive care unit) involves verbal components – one expects an order from a physician to hospital staff.  But it is action nonetheless, changing the position of physician, patient R, and hospital, and the action has a physical aspect too (R will be put in the intensive care area, and a special regimen of observance will be followed by staff). 

34.  Nonhearsay.  V’s act in returning money gotten by mistake is obviously action that tends to show honesty.  The accompanying words (“you’ve made a mistake”) are verbal acts in the same sense as the words that accompany the loan of the car (Question 22) and the words that accompany payment of rent (Question 27) – they give meaning to the act of V in returning the $10 bill.  He is not leaving a tip, paying for an additional purchase, or being charitable to a starving human being; rather, V is rectifying the error by the clerk.  His words have that effect not so much because we credit them as assertions, but because we give legal consequence to the behavior of the party in settling their transactions this way.  In this sense, what V did resembles what Cartwright did in pointing out the corn to Lord in Problem 3-E (Whose Corn?) (page 136).

• First, it means defining “reputation” to be the noise generated in the community about V:  “Reputation” is what “they” (nameless throngs that comprise the community) say about V, without regard to what “they” believe to be true.  Second, it means assuming that the witness who testifies about what “they” say is telling what he has personally heard many people say about V, when the witness may well be reporting what X and Y and Z told him they heard yet others say, in which case the witness is giving “indirect” hearsay.  This possibility makes the situation similar to Check (page 128):  There Spinelli described what he said, which conveyed sub silentio what Cali had told him; here the witness describes what V’s reputation is, which conveys sub silentio what others have told him V’s reputation is.

35. [It is important to cross-reference this to our discussion of character evidence both in Chapter 8 and in Chapter 5, to which we will return in a few weeks.]