Are rumors reliable?

If the person making the out of court statement (declarant) is not available for cross examination then the testimony presents the following dangers: a. Ambiguous b. Insincere c. Incorrectly remembered d. Inaccurately perceived.

 “Out of Court Statement Used to Prove the Truth of the Matter Asserted.”  Statement A: O is prosecuted for robbery; he claims he was captured and forced to take part in a robbery. He offers a note he wrote to his wife during the captivity. “If I don’t take part in the robbery, they’ll kill me.” The testimony (note) is being offered to show that O believed if he didn’t take part in the robbery then they would kill him.  Statement B: O is prosecuted for robbery; he claims he was captured and forced to take part in a robbery. He offers a note he wrote to his wife during the captivity. “If I don’t take part in the robbery, they’ll kill me.” The testimony (note) is being offered to show that if O did not take part in the robbery then they would kill him.

Statement A: NOT HEARSAY The statement is being used to show what O believed, not whether the content of the note was true. Statement B: HEARSAY The statement is being used to show that its content is true.

 Any statement made “by a witness during the trial while testifying before a trier of fact.”  Opportunity to cross examine.

1 Verbal act – operative act that gives rise to legal consequences.  Example:  O says to W (a vice officer), if you pay me $25 I will give you drugs. If O is prosecuted for solicition if it is not offered to show its truth (O would give W drugs if W paid him $25); but rather to show that O is guilty of solicitiation as defined to sell drugs for money.

2. Verbal parts of act: words that accompany an ambiguous physical act, is not offered for truth and thus is not hearsay. Example: O gives X money and says “ This will repay you for the money you lent me last year. If offered by X in defense of a bribery charge, this will not be hearsay because the words that accompany the payment give the payment its particular legal effect – loan repayment.

3. Effect of reader/hearer: A statement offered to show its effect on the listener or reader will generally not be hearsay. -statement can be offered to show the reader/listener a. had notice b. knowledge c. acted reasonably Example: Malpractice suit against D, a hospital, for having hired X as a doctor. P offers written statements by two other hospitals refusing to allow X on their staffs because he was incompetent. If P shows that D say the letters before admitting X to the staff, this will not be hearsay – the letters are not being offered to prove the truth of the matter asserted (that X was really incompetent), merely to show that a reasonable person in D’s position would have doubted X’s confidence.

 Declarant’s state of mind: Statements introduced to show the state of mind of the declarant are not hearsay.  Example: D says to X, “I need to get my brakes checked because they haven’t been working well.” In a negligence suit by P against D, that statement is not hearsay, because it is not offered to show that they brakes were defective, merely that D had knowledge that the brakes might be defective.

 Definition of hearsay.  What is not an “out of court statement.”  When out of court statements are not being used to prove the truth of the matter asserted:  Verbal act with legal consequences  Effect on reader/listener  Declarant’s state of mind