1. Hearsay Keaton Transcript

2. FACTS Civil Action for assault and battery brought by plaintiff Mia Keaton against defendant Woody Brooks. Keaton claims that Brooks struck her numerous times with a windshield cleaning tool at a "Jet" self- service station. Brooks denies striking Keaton, and in the alternative contends that any action he may have taken with regard to Keaton was in self-defense. Testifying on plaintiff Keaton's behalf is Ann Hall, who was present at the gas station at the time of the incident.

3. Direct Examination by Plaintiff's Counsel Q. Please state your name. Def. Att. : objection, hearsay 1. The court: Overruled, you may answer. A: Ann Hall Q: Were you are the Jet gas station on Melish Rd. on the afternoon of February 14? A: I was Q. What time was this?

4. 2. A: It was exactly 4 o'clock. I know because just as I pulled in I heard the radio announcer say, "Time for the 4 o'clock news." IS THE STATEMENT ABOUT TIME A HEARSAY STATMENT? SUPPOSE THE EXACT TIME IS NOT CRITICAL WOULD THAT MAKE A DIFFERENCE IN ADMITTING THE STATEMENT? Techniqally, yes, it is hearsay seen in FRE 801(c). If the time is not a critical issue, then the time would not make much of a differance as to her testimony.

5. Q: And what if anything occurred at that time? 3. A: I had been waiting in line for a few minutes, and when it was my turn and I got out of my car to pump gas, I, someone yelled, "This is ridiculous. I've never had to wait this long for gas in my life." 4. Q. You later found out that the person who said this was defendant Brooks? A. That's right. q: What tone of voice was this said in?

6. 5. A: He sounded very angry, like a wild beast. Q: How did you react? CAN A WITNESS FORM THE OPINION THAT A PERSON IS ANGRY, OR DO YOU NEED EXPERT TESTIMONY TO DETERMINE ANGER? WHY OR WHY NOT? THE REFERENCE "WILD BEAST" SHOULD BE STRICKEN, CORRECT? WHY, WHAT KIND OF OPINION IS IT? From what I can tell, I would need expert testimony. What one might seem as yelling and being crazy could just be how someone talks in general. For example,when I talk, I talk very loudly so people think I’m yelling but I would just be talking normally. The reference “wild beast” should be stricken due to FRE405(a), this statement would give a bad look on the person, as it is ruining his reputation or the opinion of the defendant.

7. 6. A: I was frightened, I told the friend who was riding with me that the guy could be dangerous, because I had looked over and seen that he was holding a windshield washer tool. IS HER FRIGHT RELEVANT, WHY OR WHY NOT? WHAT ABOUT HER OUT OF COURT STATEMENT - IS IT HEARSAY(SEE TRIANGLE, AND HEARSAY)TRIANGLEHEARSAY Yes, her fright is relevant because it was her reaction to what the defendant, Brooks, did. The out-of-court statement is not hearsay since she is quoting herself and not someone else.

8. Q: Then what happened? 7. A: He walked over to her (pointing to plaintiff) and told her to stop pumping gas or he'd beat the stuffing out of IS THE ABOVE STATEMENT HEARSAY, OR NON HEARSAY, IF NON-HEARSAY WHY IS IT NON- HEARSAY? WHY IS IT NOT BEING USED TO PROVE THE "FACT OF THE MATTER ASSERTED THEREIN, I.E. "FOTOMAT" - WHAT IS IT BEING USED TO SHOW OTHER THAN THE TRUTH OF THE STATEMENT According to 801(c), identifies a person as someone the declarant perceived earlier, this would not be hearsay. The reason it is not being used to prove the fact of the matter asserted therein is because it is being used to show that the defendant, Brooks, was threatening and being aggressive towards the plaintiff, Ms. Keaton.

9. Q: Can you remember her exact words? Def. Att. : Objection, asked and answered. 8. The Court: Sustained. Q: Did Ms. Keaton reply? 9. A: Yes, she told him to stay away from her, that she was a black belt in karate. IS THIS A HEARSAY STATEMENT, IF NOT WHAT OTHER PURPOSE COULD THE STATEMENT BE ADMITTED TO SHOW OTHER THAN THE TRUTH OF THAT STATEMENT? No, it is not hearsay. The other purpose the statement is trying to show that Keaton, is trying to be defensive to Brook’s threat.

10. 10. Q: Why did she say this? A: She was clearly scared, and wanted to frighten him off. Q: Then what happened? A: I started pumping gas, hoping to get out of there fast. Q: Did you see Ms. Keaton and the defendant again?

11. 11. A: yes, I looked up when I heard someone at the next pumpt say, "He's hitting her over the head for no reason." Ms. Keaton was bent over, and the defendant was hitting her in the back of the head. WHAT IS THE 403 PROBLEM HERE? STATEMENT COULD BE USED TO SHOW WHAT MADE THE WITNESS LOOK UP, BUT WHAT PREJUDICE DOES IT CARRY? WHAT RULING BY THE COURT ON 403 OBJECTION? COULD THE STATEMENT BE TONED DOWN A LITTLE, IF SO WHAT WOULD THE STATEMENT LOOK LIKE? The problem here is that FRE 403 states that this statement would cause unfair prejudice. The reason it would carry unfair prejudice is because the witness never saw what happened or heard what happened. For all we know, Ms. Keaton could have tried to hit him first, while this statement is only showing that the defendant looks like a uncivilized human beating on someone for no apparent reason.

12. Q: How many times did you see the defendant strike Ms. Keaton? A: I don't recall exactly. Q: Might it refresh your recollection if you looked at your deposition? A: That's possible. (Counsel identifies page and line of deposition, shows it to the witness, and takes it back) Q: Now, how many times did you see him strike Ms. Keaton? 12. A: According to my deposition, it was 5 times. WHY IS THIS HEARSAY? The reason this is hearsay is because the deposition is a out-of-court statement.

13. 13. Q: Did you also testify in the deposition that after he stopped hitting Ms. Keaton, the defendant said, "Serves you right?" WHY IS THIS HEARSAY? WOULD THERE BE A DIFFERENT RESULT IF SHE WAS ASKED TO READ THE DEPOSITION, AND THEN ASKED IF HER "MEMORY WAS REFRESHED" - WHY THE DIFFERENT RESULT? Yes, this is hearsay because it was an out-of-court statement made by the defendant. It is also a leading question that is trying to get the witness to confirm her deposition. If she was asked to read the deposition, the yes, there would be a different result due to FRE 801(d)(B)(ii), is consistent with the declarant’s testimony and is offered and to rehabilitate the declarant's credibility as a witness when attacked on another ground A: Yes. Q: Then what happened? A: The defendant threw down the windshield washer tool, ran to his car and drove off. Q Did you notice anything about his car? 14: A: yes it had a strange personalized license plate which read, " Lik 2 Fite."

14. 15. Q: One last question. Are you personally acquainted with either of the parties to this action? WHY IS THIS QUESTION BEING ASKED? IS IT RELEVANT? WHY? DO YOU HAVE TO WAIT UNTIL CHARACTER OR CREDIBILITY HAS BEEN ATTACKED BEFORE DEFENDING OR BOLSTERING IT? The reason the question is being asked and is relevant is because it shows that there is no biased opinion or conflict of interest towards both the plaintiff and defendant. No, you don't have to wait, because then the credibility is effected.

15. A: No I am not. Cross Examination by Defense Counsel Q: Ms. Hall, isn't it true that you have a medical condition that has caused you to lose 50% of your hearing ability? Pl. Att: Objection, beyond the scope of direct. I asked her nothing about her physical condition. 16. The Court: What ruling?

16. Pl. Att. Also object as hearsay; counsel is trying to elicit a hearsay statement of her doctor. IS OBJECTION PROPERLY MADE ON HEARSAY GROUNDS? I.E. CAN WITNESS TESTIFY ABOUT WHAT THE DOCTOR TOLD THEM ABOUT THEIR PHYSICAL CONDITION? WHY IS THAT NOT HEARSAY? According to FRE 803(4)(B), Statement Made for Medical Diagnosis or Treatment, which is an exception to describe medical history; past or present symptoms or sensations; their inception; or their general cause. the objection is not properly made on hearsay grounds. 17. The Court: What ruling? WHAT RULING BY THE COURT, AND WHY? Overruling. Plaintiff is aware of her own physical conditions therefore her statement is credible

17. Q: Let's move on. A few weeks after this incident, my client called you at your place of business, correct? A: Yes. 18. Q: And he was polite and courteous at that time, right? A: Yes. 19. Q: And he told you that he thought Ms. Keaton was going to attack him with a knife?

18. A: That's what he said. IS THIS HEARSAY? ANY NON-HEARSAY EXCEPTIONS TO THIS STATEMENT? Yes, it is hearsay because it is an out-of-court statement. No exceptions. 20. Q: And you said, did you not, that everything happened so fast, you couldn't tell what happened? A: I did but the reason is that …… IS THIS A HEARSAY STATEMENT, WHY WOULD IT BE ALLOWED IN COURT? LOOK AT FRE 801(D) - SEE HEARSAY EXEMPTIONS FRE 801(D) - SEE HEARSAY EXEMPTIONS Yes, because it an exception as seen on FRE 801(D) which states it is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition

19. Q: Thank you, you've answered my question. Now…. Pl. Att. Your Honor, I ask that the witness be allowed to explain why she might have made the statement. 21. The Court: Denied. you can elicit the explanation during redirect if you choose to do so. IF YOU WERE JUDGE, WHAT REASON WOULD YOU GIVE TO ALLOW THE EXPLANATION? SUPPOSE WHAT SHE SAYS IS "I WAS AFRAID OF HIM AND JUST WANTED TO GET RID OF HIM" - WOULD THAT BE ALLOWED AND WHAT WOULD THAT PROVE. I would follow the same ruling, since now the credibility of her statement is in question.