1. HOW TO OBJECT TO HEARSAY:
"I object to _________ because it is hearsay."
2. HOW TO FIGURE OUT THE BEST RESPONSE TO A HEARSAY OBJECTION:
a. First, ask whether it fits the definition of hearsay. If not, you can respond:
--- It does not assert an observation about an event made by the declarant.
--- It is offered for a relevant purpose other than whether the event occurred as the declarant says.
--- The words have independent legal significance.
b. Second, ask whether it is an admission of the opposing party because:
--- made by the party personally
--- Attributed to party because adopted or authorized
--- Made by a coconspirator
c. Third, ask whether it fits under any of the exemptions in 801(d)(1) for prior statements of trial witnesses. These are:
--- Prior inconsistent statement under oath
--- Prior consistent statement
--- Statement of identification
d. Fourth -- Identify the most likely exception
1). IS IT A DOCUMENT? - Then the most likely exceptions are business records or public records
2). WAS THE STATEMENT MADE AT THE TIME OF EVENT? - then the most likely exceptions are the ones for spontaneous statements
3). WAS IT MADE AT SOME OTHER TIME? - then consider the unavailability exceptions
e. Fifth --look for a second possible exception. Things are not always what they appear.
f. Sixth -- As an afterthought, look for hearsay within hearsay issues and prior statement issues.
g. Seventh -- If you can't think of anything else, argue "interests of justice" under the residual exception, Rule 807.
Questions? Email tanford@indiana.edu, and refer to HS01.
Assume we are trying a personal injury case in which both parties died following a car wreck. Under state law, the case is brought in the name of the plaintiff against the estate of the defendant. The complaint alleges that the defendant ran a stop sign. The defendant has pleaded contributory negligence. The evidence offered is a statement made by Plaintiff in the emergency room, "I think my back is broken and I'm blind. If only I hadn't run that stop sign."
1. Part one: The defendant calls the emergency room nurse who testifies to hearing plaintiff say "If only I hadn't run that stop sign." Plaintiff objects that this is hearsay. What response by the defendant? When you think you know the answer, click here .