Hearsay Definition continued. Foundation Questions Q. What is your occupation? A. I am a rat catcher. Q. Where were you on the morning of October 1, 2014.

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Presentation transcript:

Hearsay Definition continued

Foundation Questions Q. What is your occupation? A. I am a rat catcher. Q. Where were you on the morning of October 1, A. I was on the corner of Lincoln and Main. Q. Did anything unusual happen? A. Yes, I was looking for rats when I heard a woman exclaim “that bus is running a red light” and then I heard a sickening crash.

Because the woman who made the statement is not on the stand, she cannot be cross examined to determine the reliability of the statement. Perception Bias Memory Accuracy.

Mrs. Bambi Smith Q. What if anything did you see that morning? A. I glanced at the intersection and saw the bus running the red light.

But what if she answered: I glanced at the intersection and yelled “the bus is running the red light.”

In an action for Child support: Q. Describe when and how you first met Mr. Woo. A. It was in the middle of January. I had just gotten off a bus on my way home from work. It was a miserable day---snowing and windy. This funny looking man got off the bus behind me and said, “I enjoy a sunny day like today, makes me want to go to the beach.” I laughed and we struck up a conversation.

What is the attorney trying to do by eliciting this statement? Is he trying to prove it was a sunny day?

Implied Assertions Q. What did the defendant say to you. A. He asked “did the Browns win yesterday?” Is it hearsay?

Implicit V. Inferred Wright v. Tatum p. 329

Assertive Conduct Q. what happened when you arrived on the scene of the accident? A. There were a bunch of people standing around. I asked them, “Did you see what happened?” Two people nodded their head. I then asked, “who ran the red light?” the same two nodded their head.

An important issue in a case is whether it was raining or not at 1 P.M. Q. Was it raining at 1 P.M.? A. Yes, I looked out the window and people had their umbrellas up. Objection, hearsay

It is not hearsay because the conduct was not intended to make an assertion.

Same case: Q. How do you know it was raining? A. I asked Jim if it was raining outside and he held up his umbrella.

Police Raid: Police raid a suspected drug dealers home. The phone rings and the police officer answers. Voice: is this Jim? Police: no he’s busy, can I give him a message? Voice: Tell him that Randy called and that I need two hits tonight. Police: Ok. How much of this is admissible in the prosecution of Jim? U.S. v. Zenni