More Hearsay Problems & Exercises:
Nonassertive Conduct and Related Matters
by Professor Peter
Tillers
Copyright 2002
for
Course in Evidence
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Burglary, Flight & Hearsay
Background:
Burglary prosecution
The common law rules of evidence apply.
The Forbes building at 5th Ave & 12th Street was burglarized by someone at 3:00 a.m. on June 1, 2001.
Della Defendant is charged with that crime, she is charged with burglarizing the Forbes building that night at that time.
At trial the government's attorney makes an offer of evidence:
Weary Witness will testify (if allowed):
On June 1, 2001, he (WW) had insomnia and that he decided to go out for a walk;
he was at 5th & 12th St. at 3:00 a.m.;
at 3:01 a.m. at 3:00 a.m. he was at 5th Ave. & 12th St.;
at 3:01 a.m. on June 1, 2001, he heard a burglar alarm in the Forbes building begin to ring;
a split second later he saw Della Defendant, who until then was walking slowly north on 5th Ave. near the intersection of 5th Ave. & 12th St., -- he saw Della break into a run, and run north on 5th until Weary Witness could no longer see her.
Della's counsel states:
Objection, your Honor: Hearsay.
Problem #1
Prosecutor replies:
That's ridiculous, your Honor. We're only trying to show what Della did, not what she said. It can't be hearsay.
What do you think of the prosecutor's argument?
Answer: It's bad -- because _____ ?
Problem #2
Suppose the prosecutor further states:
Your Honor, perhaps conduct can be hearsay. But this conduct -- running away -- was not hearsay. Della wasn't trying to say anything by running away. This conduct is not like pointing at someone in order to say, "He did it." So this conduct, which was certainly not meant to communicate a message or make an assertion, can't be hearsay.
This argument is also bad. What's wrong with it?
Reminder: common law rules of evidence apply.
Answer: ____ ?
Problem #3
All this [the above answer] is true, but the trial court nevertheless overrules Della's hearsay objection.
What's a possible explanation?
Answer: ___________ ?
Problem #4
The same case and the same offer occur in a federal trial; i.e., the Federal Rules of Evidence apply.
Della's lawyer once again argues that her alleged out-of-court conduct of running is hearsay.
Is the argument good or bad?
{Answer:} It is bad -- because _________?
Problem #5
Assume once again that the common law rules of evidence apply.
However, this time Della Defendant makes the offer of evidence.
Moreover, the offer of evidence is also different: Della Defendant offers to show:
Shortly after the burglar alarm went off (at 3:01 a.m.) John Jones {JJ} was seen running away from the scene of the crime.
Prosecutor objects: Hearsay.
If the court agrees that JJ's conduct was an implied statement, won't it overrule the HS objection on the theory that JJ's flight was an admission?
Answer: No, I have tricked you. Please explain:
___________________
Note that there is a way for DD to avoid the hearsay problem:
DD may say:
"Your Honor, we offer the JJ's flight not to show that any assertion he might have made is true, but only to show that he was in the area in which the crime was committed and therefore had the opportunity to commit the burglary."
Query: If the evidence is offered for that purpose, is it relevant?
Problem #6
Now assume that the FRE apply in this same situation; i.e., DD offers JJ's flight.
Is there a potential hearsay problem?
Very probably not -- because ___________ ?
Problem #7
Return to the scenario at CL: DD offer's JJ's running on the theory that the running shows JJ's consciousness of his own guilt.
As we have seen, this offer, made for this purpose, runs into a hearsay problem. And the admissions exception is not available. But might the act of running qualify as a "statement against interest"?
I think not. There are two or three distinct problems with this theory:
First, __________ ?
Second, _________ ?
Third, at common law statements against penal interest -- criminally incriminating statements -- did not qualify as statements against interest. {This has been changed by the FRE! See the language of FRE 804(b)(3).}
Problem #8
The problem arises again under the FRE.
Q. Is JJ's act of running relevant if the act of running is offered to show DD's innocence by showing JJ's belief in his own guilt?
What if the prosecutor argues, "Your Honor, it is entirely possible that JJ ran because he took fright when he heard the burglar alarm. Indeed, that is the most plausible explanation for his conduct."?
