Law School Discussion

NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!

NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« on: April 28, 2009, 01:45:44 AM »
Q - P falls off escalator at store. sues D, owner of store. P seeks to have W, who was at store, testify that she overheard heard jim tell sally that he overheard bill tell D the elevator was acting up.

A - bar review book answer says it's not hearsay b/c it's not being asserted for the truth of the matter, i.e. that the elevator was acting up - instead it is being introduced to show that D had notice.

BUT - isn't it also being introduced for the truth that jim asserted to sally that he overheard bill tell D?

in that case, it would be hearsay, right?

nealric

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Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #1 on: April 28, 2009, 07:50:55 AM »
There are statements that are hearsay depending on the purpose. This looks like this is one of those multiple purpose statements. Since the question doesn't specify how it's going to be used we really don't know for sure. A limiting instruction would probably required in order for this to be admissible for the purpose of showing notice. See Safeway Stores

Because it would be multiple hearsay you might run into rule 403 issues regardless of how you want to use it.

Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #2 on: April 28, 2009, 09:04:08 AM »
How about this:

Dispute in insurance claim over whether deceased died on April 30 or May 1 (insurance lapsed on May 1).  Widow seeks to testify that she visited deceased's tombstone, which read "X lies here, February 11, 1960 -- April 30, 1999," for the proposition that X died on April 30, 1999. 

Hearsay?

nealric

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Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #3 on: April 28, 2009, 09:36:33 AM »
I think it would be hearsay if it was used for the proposition that X died April 30th. The declarant is whoever made the tombstone; the declarant is absent; her words are being used to show the truth of the matter asserted. If she had visited the tombstone on April 30th 1999 she could testify that she saw his grave on that date. She could also possibly (depending on the proclivities of the judge) testify that X has a gravestone that says his date of death is April 30, 1999- not to show that he actually died then but that the gravestone says he did. Again, that might require a limiting instruction.

Additionally, you could make an argument that the gravestone is either a regularly kept business record or a public record (depending on who maintains the cemetery) and therefore qualifies under that exception.

Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #4 on: April 28, 2009, 09:38:16 AM »
Q - P falls off escalator at store. sues D, owner of store. P seeks to have W, who was at store, testify that she overheard heard jim tell sally that he overheard bill tell D the elevator was acting up.

A - bar review book answer says it's not hearsay b/c it's not being asserted for the truth of the matter, i.e. that the elevator was acting up - instead it is being introduced to show that D had notice.

BUT - isn't it also being introduced for the truth that jim asserted to sally that he overheard bill tell D?

in that case, it would be hearsay, right?

No, you're not introducing it for the truth that jim asserted to sally that he overheard bill tell D.  You're introducing it to show that D had notice.  This is not a multiple hearsay problem because it doesn't involve hearsay.  If the underlying statement is not hearsay, there's no reason to go through a hearsay analysis, period.  Illogical, I realize, but thems the rules of evidence.

nealric

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Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #5 on: April 28, 2009, 09:39:48 AM »
Quote
This is not a multiple hearsay problem because it doesn't involve hearsay.

You are right that it wouldn't be hearsay if not used for the forbidden purpose but 403 allows the judge to exclude anything he/she finds unduly prejudicial. The he said that he said stuff might fit that bill regardless of whether it's actually being used as hearsay.

Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #6 on: April 28, 2009, 09:40:37 AM »
She could also possibly (depending on the proclivities of the judge) testify that X has a gravestone that says his date of death is April 30, 1999- not to show that he actually died then but that the gravestone says he did.
 

Right, so picking up on this argument, I think you could say it is not hearsay because the simple existence of a tombstone with X's name on it and April 30 as the date of death is independent evidence of X's date of death.  You don't have to BELIEVE the tombstone writer; it's illustrative in itself, i.e., the fact that it exists to begin with.  

Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #7 on: April 28, 2009, 10:19:04 AM »
Quote
This is not a multiple hearsay problem because it doesn't involve hearsay.

You are right that it wouldn't be hearsay if not used for the forbidden purpose but 403 allows the judge to exclude anything he/she finds unduly prejudicial. The he said that he said stuff might fit that bill regardless of whether it's actually being used as hearsay.

The 403 argument can almost always be made. 

goaliechica

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Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #8 on: April 28, 2009, 10:54:02 AM »
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Re: NO ONE CAN ANSWER THIS HEARSAY PROBLEM!!!
« Reply #9 on: April 28, 2009, 10:52:36 PM »
I don't even think you have a viable 403 argument here. A clear example of non-hearsay is an utterance introduced to show notice or knowledge--when notice/knowledge of a person is relevant. So here, the utterance is relevant not to prove the fact of a broken elevator, but as indicating that the defendant gained notice/knowledge of its defective condition. The words spoken have legal significance independent of their truth. Actual proof of its defective condition would have to be proved by other evidence in the interim (i.e. between when the words were spoken and the resulting injury) You won't get anywhere with 403 because 'notice' triggers a duty in a negligence action. The words are prejudicial, but not unduly prejudicial.