The University of Florida
Fredric G. Levin College of Law
Evidence
Fall 2010
Professor Pedro A. Malavet
NOTES: Part 03-a
Casebook Excerpts are from Mueller & Kirkpatrick, Evidence Under the Rules (6th Ed., Aspen Law and Business 2008). They are preceded by the pertinent page number, placed within brackets. Note however that I have used multiple editions of this text over the past seven years and that may produce some numbering discrepancies.
III. Hearsay, First file of Three.
[pic]
The Forest in Chapter III:
On our Initial Look at Hearsay, ask:
The Forest in Chapter III:
On our Initial Look at Hearsay, ask:
(1) Is the offered evidence relevant? [FRE 401] [FRE 402]
(2) Is the offered evidence hearsay? [FRE 801, et seq.]
(a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)?
(b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
(c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?
(3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]
As you noted in Chapter 3, this analysis can be quite complex. Consider that you have to examine acts and statements in their context, in order to answer the hearsay question. Humans communicate in complex ways, therefore, you have to imagine the entire scene, rather than focusing on a cold transcript of what was said or done. Hence the casebook authors' references to "performances" or to the "performative aspects of the assertions and acts." [Click here for more on this].
(1) Is the offered evidence relevant? [FRE 401] [FRE 402]
Remember that only relevant evidence (FRE 401) is admissible (FRE 402), so you need to establish the evidential hypothesis that favors admissibility or the irrelevant evidence will be excluded under FRE 402 and the analysis of admissibility stops here.
Another issue that may be relevant here is conditional relevance. For example, the child's testimony in Problem 3-I at page 151, was only admissible after direct testimony of what the room actually looked like was offered AND it matched what the child had said. While this might also be classified as a 403 reliability question, I think it is better to look at it as a threshold relevance question.
(2) Is the offered evidence hearsay? [FRE 801, et seq.]
This is a difficult technical rules question. However, in simple terms, if the offered evidence is (1) within the definition of hearsay, and is not saved by an (2) exemption or (3) exception, it must be excluded under FRE 802, and the analysis of admissibility would stop here.
The analysis here goes like this:
(a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)?

If the answer is NO, then it is NOT hearsay and you move to the 403 question. (You may have to explain here however how the evidence is hearsay for one purpose but not hearsay for another.) If the answer is YES you move to 801(d) and then to the other sections of chapter VIII to see if there is an applicable exemption or exception.
(b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
If the answer is YES, then go to 403. If the answer is NO, move on in chapter VIII of the FRE.
(c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?
(3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]
Relevant and nonhearsay evidence may