The Balanced Approach


Be a Bar Exam Warrior

Hearsay, Say what?


Punctuation, it matters!?!?

When a declarant makes an out of court statement and that item of evidence is under scrutiny on the bar exam, WATCH OUT, because one simple statement can be broken down into more statements.  Commas matter, exclamation points matter! And question marks matter?  Yes, they do.

Breaking down hearsay statements:

Example 1:

In a plane crash negligence case, witness hears Mechanic say to Sal, his boss:

“Hey, the fuel feed reads low, Boss, and I just cleared some gunk from the line. Shouldn’t we do a complete systems check of the fuel line and fuel valves?” (July 2014 exam)

We have 1-2-3 potential statements here.

“Fuel feed reads low”

= non human declaration and is not hearsay (gets in for truth)

= effect on listener (gets in to show notice provided to Sal)

“I just cleared some gunk”

= effect on listener: offered to show that the boss, Sal, had notice that there may have been gunk on the line (does not get in for the truth that there was gunk in the line, only that Sal had notice.) 

= Vicarious party admission = gets in for the truth of the matter as well.

“Should we do a…check?”

= it’s a question, so arguably not an assertion and not hearsay. 

= but if it is introduced to assert that we should have done a complete check, then argue it can come in under a vicarious admission

Example 2:

In a criminal first degree murder case, Adnan says to Jay, the prosecution’s witness “I can’t believe Hae moved on so fast with an older man, I will kill her.”

We have 2 statements

“I cant believe she moved on with an older man”

= circumstantial evidence of state of mind offered to show Adnan believed Hae moved on. Not offered to prove that Hae moved on with an older man, just that Adnan believed it to be true.

= effect on listener to show that Adnan had a motive (not for the truth of the matter)

“I will kill her” (this is offered for the truth, no way around that, its offered to prove he intended to kill her, and did)

= party admission

= statement against interest (if Adnan does not testify)

= present state of mind (intent and that the intent was carried out)

Is the Effect on Listener confusing you?

Here’s how it works.  It is not being offered for the truth in the statement. And it does not get admitted for the truth.  It’s being offered to show that the person who heard the statement, would upon hearing that statement, have:

-       Notice or knowledge: in a negligence case declarants statements made to a defendant to show that the defendant was put on notice of potential torts: “your tire is about to burst,” “the fuel feed reads low,” “I just cleared some gunk in the line,” “the staircase is broken,” “your tree is going to fall if you don’t stake it”

-       Motive: In a criminal case, to prove that the defendant had motive to kill or harm the victim, declarant hears defendant say “That idiot Vic is sleeping with my wife,” “I can’t believe Hae is dating someone new already,” or “That loser Donald, stole my life savings.”  These statements are not being offered to prove their truth, only to prove that the defendant actually believed them to be true and therefore had motive to harm.

Note: if you want to get them in for the truth of the matter asserted as well, then you need to find an exception or exemption to the rule and it will get in for the truth as well.

Amy Parekh