# Rule 801: The Basic Definition of Hearsay. Start with a fact of consequence Add an observer.

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Rule 801: The Basic Definition of Hearsay

Bring the observer to court Have observer tell jury what he saw No Hearsay Problem Jury

Hearsay Slide Light was red If witness says something is true, it is SML that it is true Forbidden Hearsay Inference? Witness For this to be probative, whom must jury believe? The witness who is also the observer. = Observer Not hearsay. Jury only has to believe the witness -- no one else

Bring the observer to golf course Have observer tell friend what he saw

Have friend tell jury what she knows Bring the friend to court Big Hearsay Problem Jury

Hearsay Slide He told me light was red Light was red If observer (who is not the witness) says something is true, it is SML that it is true Forbidden Hearsay Inference? Witness For this to be probative, whom must jury believe? The witness and also the observer. is not the Observer Hearsay. Jury has to believe an observer who is not testifying.

Definition of Declarant An observer who is not the testifying witness is called a declarant

Definition of Declarant 2 A declarant is anyone except: This witness Testifying now In this court

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

Basic Definition of Hearsay 2 The jury believes someone Who is not currently subject to cross- examination Hearsay is evidence that has probative value only if

Problem 21A Do Problem 21A

Have friend tell jury what she knows Bring the friend to court Big Hearsay Problem Jury

Start with a fact of consequence Usually the FOC is something the declarant observed about the external world But sometimes it is not.

Problem 21B Do Problem 21B

When “just saying it” is a FOC Verbal Act: Slander Jury Bill’s a crook

What’s proponent asking jury to think? Jury Bill’s a crook Bill’s really a crook Bill’s a crook And is a liar.

Slander Case He said, “Bill’s a crook.” No EH required Witness But why is “He said, ‘Bill’s a crook” material. Because substantive defamation law says so

When “just saying it” is a FOC Verbal Act: Fraud Jury No termites

What’s proponent asking jury to think? Jury No termites Really no termites No termites And he’s a liar.

When “just saying it” is a FOC Verbal Act: Contract Formation Jury I accept Can this be true or false?

Contract Case He said, “I accept.” No EH required Forbidden Hearsay Inference? Witness For this to be probative, whom must jury believe? Just the witness. Not Hearsay. Jury does not have to believe anyone but the witness. But why is “He said, ‘I accept’” material. Because substantive contract law says so

When “just saying it” is a FOC Verbal Part of Otherwise Legally Ambiguous Act: Bailment vs. Gift Jury Keep this watch for me Happy Birthday This is a gift Can this be true or false?

Bailment v. Gift Case He said, “This is a gift.” No EH required Forbidden Hearsay Inference? Witness For this to be probative, whom must jury believe? Just the witness. Not Hearsay. Jury does not have to believe anyone but the witness. But why is “He said, ‘This is a gift’” material? Because substantive property law says so Notice: It doesn’t matter whether he meant it.

When “just saying it” is a FOC Effect on the Listener Jury Water in Aisle 4

What’s proponent asking jury to think? Jury There’s water in Aisle 4 Aisle 4 was wet Sure, but P will have to prove that some other way There’s water in Aisle 4 And, heard & therefore believed it

When “just saying it” is a FOC Effect on the Listener Jury I am going to kill you!

When “just saying it” is a FOC State of Mind of Speaker Jury Water in Aisle 4

What’s proponent asking jury to think? Jury There’s water in Aisle 4 Aisle 4 was wet P will have to prove that some other way There’s water in Aisle 4 Since, said it, it is SML he believed it

When “just saying it” is a FOC Other Facts About Speaker Jury Water in Aisle 4 Speaks English If corroborated: Was there Is observant If proven false: Is unreliable on other issues