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Tue May 16, 2017, 10:15 PM

 

Federal Rule of Evidence 803 - Exceptions to Hearsay


The legal definition of "hearsay" is poorly understood by a lot of lawyers, let alone non-lawyers.

Simply defined, with a lot that unpacks, hearsay is an (a) out of court statement, (b) offered as evidence for the truth of what is stated therein.

It includes a lot more than the classic "someone saying what someone else said", but also includes things people wrote down.

The Federal Rules of Evidence, Rule 803, distills judicially-derived and somewhat "common sense" exceptions to things that are hearsay, but under certain conditions will be allowed as evidence of what is asserted. My favorite is the "excited utterance" - "A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused."

That rule is known to a lot of people, for example, police who will shout "stop resisting" when someone isn't actually resisting, as an excuse to rough them up. But, normally, it is for situations where you have a witness who was having a cell phone call with someone who shouted "Holy Shit! That red pickup truck just ran over the naked guy who was jaywalking, ran the redlight, and almost hit me!" if, for example, there was a factual issue over what type and color the vehicle was.

In general, the are things which are hearsay are statements made under certain circumstances of "reilability", and also conditioned on whether the declarant is available to testify. The "dying declaration" is a popular one.

One of the important exceptions to something being considered hearsay, deals with things that people wrote down at the time something happened:

https://www.law.cornell.edu/rules/fre/rule_803

(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witnessís memory; and

(C) accurately reflects the witnessís knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

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Arrow 15 replies Author Time Post
Reply Federal Rule of Evidence 803 - Exceptions to Hearsay (Original post)
jberryhill May 2017 OP
Ilsa May 2017 #1
WheelWalker May 2017 #2
jberryhill May 2017 #3
WheelWalker May 2017 #5
Stallion May 2017 #4
snot May 2017 #6
jberryhill May 2017 #8
FBaggins May 2017 #7
jberryhill May 2017 #9
FBaggins May 2017 #11
Jersey Devil May 2017 #10
Madam45for2923 May 2017 #12
jberryhill May 2017 #13
Madam45for2923 May 2017 #14
FBaggins May 2017 #15

Response to jberryhill (Original post)

Tue May 16, 2017, 10:18 PM

1. Excellent! Thank you! NT

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Response to jberryhill (Original post)

Tue May 16, 2017, 10:19 PM

2. "For every hearsay there is an exception"

is what I learned.

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Response to WheelWalker (Reply #2)

Tue May 16, 2017, 10:27 PM

3. Yeah, that's where a lot of students screw up

 


Because they see something, go for the exception they think applies, and then say it's "not hearsay".

The approach should be first, "is this hearsay?", then "is there an applicable exception I can try to shoehorn it into". It remains hearsay, but is admissible as evidence due to an exception to its default inadmissibility.

If its hearsay, the answer is "This is hearsay. Hearsay is generally inadmissible. But..."

The sneaky trick on exams is to come up with something that is not actually hearsay, but looks like it was aimed at an exception, to fake students into going for the exception instead of not first establishing that it is hearsay.

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Response to jberryhill (Reply #3)

Tue May 16, 2017, 10:30 PM

5. Agree completely.

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Response to jberryhill (Original post)

Tue May 16, 2017, 10:27 PM

4. Message deleted by DU the Administrators

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Response to jberryhill (Original post)

Tue May 16, 2017, 10:40 PM

6. Also, seems to me that

if Trump's having said or asked something is in itself a violation of the law, then testimony or a memo that he did indeed say that is not "offered as evidence for the truth of what {Trump} said" but rather offered as evidence that he in fact said it.

So, e.g., if Trump intentionally and falsely yelled "fire!" in a crowded theater, testimony that he yelled that word would be hearsay for purposes of trying to prove whether there really was a fire, but it would not be hearsay for purposes of proving that he in fact yelled that word.

Or again, if he said he killed his mom, testimony that he said those words would be hearsay for purposes of proving whether he actually killed his mom; but if merely saying he did it were for some reason a crime in itself, testimony that he said those words would not be hearsay for purposes of proving whether he did in fact say them.

Accordingly, if it was a violation of law for Trump to ask Comey to back off his investigation, Comey's testimony would be hearsay for purposes of proving whether anyone actually did anything worth investigating, but it would not be hearsay for purposes of proving that Trump made the request.

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Response to snot (Reply #6)

Wed May 17, 2017, 09:23 AM

8. Good points

 


One thing worth noting is that the Comey memos purport to quote Trump as saying words to the effect of "I hope you can see your way clear to..." etc.

As happens with, say, mafia figures, these sorts of utterances are objectively expressions of personal desire, and not instructions to the person to whom they are made.

In other words saying, "I hope you can clear Flynn" is different from "I demand you clear Flynn". However, to figure out the intent of the "I hope" statement, you'd have to bring in other facts to flesh that out such as that he later actually did fire Comey and cited this investigation as a reason.

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Response to jberryhill (Original post)

Wed May 17, 2017, 12:03 AM

7. All true so far as I remember it

Of course... I didn't write anything down at the time.

I've been away alj day. Is it relevant to recent developments?

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Response to FBaggins (Reply #7)

Wed May 17, 2017, 09:24 AM

9. It is relevant to a contest between Trump's recollection and Comey's

 


If Trump says "I didn't say that" and Comey says "He did say that", then beyond the conflicting statements of the parties, there is the additional evidence of Comey's memo.

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Response to jberryhill (Reply #9)

Wed May 17, 2017, 09:51 AM

11. True.

Just saw reporting on that.

Of course... this assumed there isn't a "tape" (and, of course, that it backs up Trump)

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Response to jberryhill (Original post)

Wed May 17, 2017, 09:34 AM

10. Doesn't really matter since the Rules of Evidence do not apply to Congressional hearings

Congress can consider them, but they do not govern.

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Response to jberryhill (Original post)

Wed May 17, 2017, 10:01 AM

12. Plus we are talking about the FBI DIRECTOR's notes at the time of (or right after) the events.

 

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Response to Madam45for2923 (Reply #12)

Wed May 17, 2017, 10:06 AM

13. Yes, I understand that J. Edgar Hoover had quite a number of notes about MLK

 


If you want to play "official title showdown" it is the PRESIDENT who would be contradicting him.

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Response to jberryhill (Reply #13)

Wed May 17, 2017, 10:07 AM

14. Yep but this President lies to our faces every single day! Crowd sizes anyone

 

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Response to Madam45for2923 (Reply #14)

Wed May 17, 2017, 10:31 AM

15. Many think Comey does too.

Depending on whose ox is being gored.

It would also be worth noting that if the head of the FBI knows about illegal activity on the part of the president... The court action isn't "sick it in a drawer in case he goes me" - it wouldn't help his credibility

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