HEARSAY DEFINITIONS RULE 801 PARED DOWN Rule 801d

HEARSAY DEFINITIONS [RULE 801, PARED DOWN]

Rule 801(d): Statements That Are Not Hearsay. (d) A statement that meets the following conditions is not hearsay: (1)A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement *** or [“Declarant” means a person who spoke or wrote out-of-court. Some declarants are also trial witnesses. ] Hearsay Pared Down 2

(2) An Opposing Party's Statement. The statement is offered against an opposing party and: (A) was made by the party *** [or]. . . Hearsay Pared Down 3

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed. *** The statement *** does not by itself establish *** the existence or scope of the relationship under (D) Hearsay Pared Down 4

• EXCEPT FOR THOSE KINDS OF STATEMENTS, THE FOLLOWING [R. 801] IS A DEFINITION OF "HEARSAY": Hearsay Pared Down 5

R. 801 (a) STATEMENT. "STATEMENT" MEANS A PERSON'S ORAL ASSERTION [OF A FACT], WRITTEN ASSERTION [OF A FACT], OR NONVERBAL CONDUCT IF THE PERSON INTENDED IT AS AN ASSERTION [OF A FACT]. Hearsay Pared Down 6

(b) DECLARANT. "DECLARANT" MEANS THE PERSON WHO MADE THE STATEMENT. Hearsay Pared Down 7

(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 [fact] asserted in the statement. Hearsay Pared Down 8

WHY ELSE WOULD A TRIAL LAWYER OFFER TESTIMONY ABOUT SUCH A STATEMENT? • MANY POSSIBLE REASONS; e. g. : – TO PROVE STATE OF MIND (SELFDEFENSE, NEGLIGENCE, AWARENESS, ETC. ) – TO IMPEACH A WITNESS’S CREDIBILITY (PRIOR INCONSISTENT STATEMENT) Hearsay Pared Down 9

HOW DO WE KNOW THE LAWYER’S INTENTION? • THE JUDGE ASKS: “WHY ARE YOU OFFERING THIS? ” • ONLY THEN CAN WE TELL IF THE EVIDENCE WILL BE HEARSAY! • A LIMITING INSTRUCTION WILL BE GIVEN Hearsay Pared Down 10

THE HYBRIDS • MANY TIMES, • CONDUCT [USUALLY NOT REGARDED AS STATEMENT] • IS ACCOMPANIED BY EXPLANATORY WORDS [COULD INCLUDE A STATEMENT] (“ THIS $$ IS FOR THE BOOK I BOUGHT FROM YOU”) Hearsay Pared Down 11

• TREAT THE TOTALITY AS CONDUCT. – NO STATEMENT, SO NO HEARSAY Hearsay Pared Down 12

EXAMPLES OF HYBRIDS (CONDUCT + WORDS) • ARMY PROMOTING OFFICER FROM 1 ST LIEUTENANT TO CAPTAIN • ASSIGNING A STUDENT TO AN ADVANCED CLASS • CONFERRING A DEGREE • PUTTING PATIENT Hearsay IN Pared. I. C. U. Down 13