Heresay question - Federal Rules of Evidence?

Question

Witness 1 testifies for prosecution about material statements made during a conversation with defendent. Defense wants to put defendant on the stand to testify that witness 1 was lying, he actually threatened defendant.

Witness 1 will just say that defendant's statements are all admissions.

How can we get hearsay witness 1 hearsay admitted?

Witness 1 was available, so cannot use 804. Can we use 803(3)? But witness 1 was not expressing his own state of mind, but threateneing defendant.

After re-reading my question, i am sorry about the spelling mistakes. I was pretty tired last night.

And i can see how the facts would be confusing.

What I think I am going to do if objected to is try to classify the statements as non hearsay: non assertive expressions such as questions or imperatives. These statements were commands (imperatives) - you better do this or else.

Might work - thanks everyone for your help

Answer 1

First, Normabria (the person who attempted to answer) you do not understand the legal definition of hearsy. It has nothing to do with whether the speaker is present. The definition of hearsay is "an out of court statement offered for the truth of the matter asserted." Hearsay can exist even if all parties are present.

Also, Jon B, you are only partially correct. Rule 801 (d)(1) would apply only if witness 1's prior inconsistent statement took place in a deposition or some other official proceding, or was consistent with testimony and used to rebut fabrication or motive. In this case rule 801 (d)(1) is inapplicable.

Now to answer the question, you can trust me because I just took evidence last year. You can't use 803 (3) because witness 1 did not express his state of mind, emotional, or physical condition. Did witness 1 testify to what he (witness 1) said? If so, the defendant can testify to what witness 1 said to show that witness 1 is lying. Presenting what witness 1 said in this manner would be okay because this would not be hearsay. It would not be offered to prove the truth of the matter asserted, it would be offered to show that the witness is lying. In other words, the defense can't offer the testimony as proof that witness 1 was threatening him, as that would be hearsay. But the defense could testify as to what witness 1 said if the testimony helps to show that witness 1 was lying.

Remember a statement is only hearsay if its offered to prove the truth of the matter asserted. If it is not offered for that purpose, than it is admissable. The problem with this question is that I don't know exactly what was said. Hearsay is a funny thing, the line between what is hearsay and what is not can be very thin.
Is the defendant invoking an affirmative defense such as "self defense" or something? Since I don't know specifics, its kind of hard to give a more definitive answer.

Answer 2

I'm missing something here for sure. Witness 1 is an available witness, which means under Rule 801(D)(1), the statement isn't hearsay.

Also, it doesn't sound like Witness 1's threats towards Defendant are being offered to prove the truth of the matter asserted, but merely to prove that Witness 1 said the words. (i.e. Witness 1 said "I'm going to kill you;" the statement would be offered in evidence to prove that he spoke those words, not that he actually intended to kill the Defendant.) Thus it is not hearsay; see e.g. Estate of Murdock; Subramaniam v. Public Prosecutor.

Answer 3

How is it hearsay when both parties are in court. Just because defendant doesn't want to testify doesn't make witness testimony hearsay. Maybe I'm not understanding the facts of the situation.

Answer 4

Well it is nice to see that 2L's and 3L's still don't really do much in class. I hope you are submitting these via the wireless. Since everyone has already lectured you on what hearsay is, I think you get the point that it doesn't apply here. Do a better job during cross of Witness 1 and impeach the witness's creditability.

Answer 5

Get a Lawyer!