Answers
1. This is not hearsay. It is a pristine example of an operative legal fact. The words constitute an offer to marry and, as such, if accepted form of a contract. The mere utterance of the words creates a legal right on the part of the person to whom the offer was made.(1)
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2. This is not hearsay. It is Professor Morgan's example of an indirect assertion of a declarant's state of mind of belief. It is to be contrasted with the direct assertion of the belief: "I believe I am the Pope." That direct assertion of belief would be hearsay under the FRE assertion based definition, but would be admissible within the state of mind exception to the hearsay rule. Although this problem then seems quite moot, the point is one that is very important in understanding the hearsay rule's definition under the FRE.(2)
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3. This is not hearsay. It is an operative legal fact. The mere utterance of the words constitute an element of adverse possession. The statement is not evidence of actual ownership. In fact it cannot be, by definition, because it is offered to prove ownership by adverse possession. Therefore, the statement could not be proffered for the truth of the matter asserted. The statement is relevant merely because uttered on the element of adversity of possession by the declarant-the declarant claims ownership vis-a-vis the world. The statement is also relevant merely because uttered on the element of claim of right. The statement is also relevant merely because uttered on the element of open and notorious.(3)
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4. This is not hearsay. The statement is relevant to show the effect upon X, not because it is true, but merely because X heard it. If X heard the statement and believed it, then it is more likely that X was provoked, whether or not the statement is true. For this reason, the statement is relevant merely because it was uttered.(4)
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5. This is not hearsay. On the issue of D's consciousness, it makes no difference what D stated. Unconscious people do not speak. Therefore, any coherent statement uttered is probative of consciousness without the statement having to be true.
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6. This is hearsay. D's statement that X shot D must be true to prove that X shot D.(5)
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7. This is hearsay. It is just like the previous question: D's statement that X threatened to shoot him would have to be true to prove that the threats were made.
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8. This is not hearsay. D's statement is offered, not to prove that X had a few minutes to live, but to show he had knowledge of belief that he only had a few minutes to live. Therefore, the evidence is relevant, without having to be true, merely because the statement was made by D and heard by X.(6)
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9. This is hearsay. It must be true that X believed he was dying in order for the statement to be probative of his then existing belief that he was dying. Therefore, the statement is offered for the truth of the matter asserted. Although the statement is hearsay, it would be admissible within the state of mind exception to the hearsay rule.(7)
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10. This is not hearsay. The utterance is an operative legal fact. The statement of donative intent accompanying delivery of a gift makes the gift complete as a matter of law. The utterance need not be true to prove that the delivery of the chattel was a gift. Even if the declarant harbored a secret intent that the chattel be delivered for sale, the utterance creates the legal right in the recipient to maintain the chattel as a gift.(8)
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11. This is hearsay. Under the substantive law of personal property, the donative intent that completes the gift upon delivery usually must accompany that delivery. Under this view, therefore, the statement must be true and is hearsay.(9)
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14. This is not hearsay. The reputation before and after the seduction are facts that are relevant and provable, whether the facts giving rise to the reputation are true or not. One with knowledge of that reputation can attest to it and the evidence would not be hearsay.(10)
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15. This is not hearsay. D's statement is not offered to prove that X is a liar and a hypocrite. Rather the statement is offered to show that D dislikes X.(11)
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16. This is not hearsay. D's statement is not offered to prove that Y actually threatened to shoot X, but rather the statement is offered to show the effect upon X. Having heard D's statement, X would likely fear Y.(12)
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17. This is not hearsay. The statement is relevant to prove that X reasonably feared Y, whether or not the reputation was deserved. Once again, the effect on the hearer is what counts.(13)
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18. This is not hearsay. This is another variant on the use of a statement to prove the state of mind of the hearer. X, having heard of P's reputation, whether the reputation is deserved or not, is relevant to X's probable cause in prosecuting P.
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19. This is not hearsay. This is yet another variant on the use of the statement to prove the state of mind of the hearer, X. X would be justified in finding probable cause to prosecute P if X had heard of Y's reputation as a quiet, peace-loving citizen even if it were untrue that Y had such qualities. Having heard of such reputation, X would be more likely to reasonably believe that P killed Y without justification or excuse.
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20. This is not hearsay. The term of the contract that makes sense in the context of this question, is whether D is negotiating the contract for P or acting for himself. Assuming that there is other evidence of D's agency on behalf of P, then D's statement, is an operative legal fact with respect to him acting as agent for P. In such an instance, saying it makes it so.(14)
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21. This is hearsay. When D's statement is offered to prove the existence of the agency relationship, the statement must be true to do so. Therefore, it is hearsay.(15)
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22. This is not hearsay. This is non-assertive conduct, or even if assertive, is not offered for the truth of the matter intended to be asserted. First, the form of the utterance is described as an order. Under the definition of statement, only an assertion can be hearsay. An order is not an assertion. Second, even D were viewed as having engaged in some form of assertive conduct here, the purpose stated makes it clear that the doctor did not intend to assert his belief that X had tuberculosis. Rather, he tried to conceal it. Therefore, even if he intended some assertion, it was not that which the evidence is offered to prove. Therefore, it is not hearsay.(16)
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23. This is not hearsay. It is also non-assertive conduct. The declarant, on the face of it, did not intend to assert the belief that X is honest. Rather, the declarant intended to promote X. Therefore, under the FRE, this is nonhearsay.(17) As Professor McCormick put it (and the Advisory Committee agreed), "conduct (other than assertions) when offered to show the actor's belief's and hence the truth of the facts so believed" should not be classed as hearsay.(18)
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24. This is hearsay. The fact that we are told that D acted as he did in order to draw suspicion upon himself, makes assertive what would otherwise be non-assertive conduct.(19)
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25. This is not hearsay. First, it is an observable fact. Second, even if one goes behind the fact, any possible conduct or utterances that could lead to X's presence in the asylum, are based either on nonassertive conduct or on statements not intended to assert that X is insane. For example, if X's doctor ordered him to the asylum, the doctor likely intended to treat him. The same could be said for a commitment by X himself, a family member, or a court.(20)
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26. This is hearsay. The only way that this problem can make any sense is if, from the context, the declarant intended to accuse X of forgery. For that purpose, the statement must be true to be probative of forgery by X and, therefore, is hearsay. This is the best solution to the problem, for no other makes any sense. Moreover, this is an example of a situation where the declarant can be inferred to have intended a specific assertion.(21)
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27. This is not hearsay. It is nonassertive conduct and, therefore, is not a statement under the FRE definition. This is particularly clear in this case, since the problem states that D acted "solely in order to escape." Since D fled in order to escape, this evidences his consciousness of guilt and, therefore, is relevant to prove his guilt.(22)
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28. This is not hearsay. The statement accompanying the gift manifests contemporaneous donative intent and constitutes and operative legal fact.(23)
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29. This is not hearsay. It is nonassertive conduct. By its terms, the problems presents the fact that the intent of the doctor was to treat the patient, not to assert a belief.(24)
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30. This is not hearsay. The assertion is an operative legal fact on the elements of adverse possession. See discussion of Question 3.
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31. This is hearsay. It is a direct assertion of D's then existing feeling. Therefore, to prove that feeling, which is relevant to show that D is ill, it must be true. (Of course, the statement, though hearsay, is within the state of mind exception, FRE 803(3)).(25)
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32. This is not hearsay. The testator's conduct is relevant to show his hostile feelings toward X. Either the conduct does not amount to a statement, or it is circumstantial evidence of the testator's feelings; in either event, it is not hearsay.(26)
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33. This is not hearsay. First, this question may differ from the last in that the testator issued an order that is the focus of the question. An order is not an assertion. Therefore, the evidence is not in the form of a statement and thus is not hearsay. But even if the problem were viewed as presenting evidence of a statement, it would be circumstantial evidence of the testator's dislike of X, not a direct assertion of it. Therefore, on this reasoning the evidence would likewise not be hearsay.(27)
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34. This is not hearsay. Here, again, the testator's actions and utterances are circumstantial evidence his state of mind of dislike of X. Moreover, here the problem states that testator "falsely charged X" with the crime. This fact underscores the testator's dislike of X.
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35. This is not hearsay. The designation of payment is an operative legal fact, earmarking the $500 as payment for the car as opposed to payment for some other thing or purpose.(28)
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36. This is hearsay. In order to prove payment, the statement today about the conduct yesterday must be true. Unlike the previous problem, this statement did not accompany delivery of the payment. Therefore, it is not an operative legal fact.
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37. This is hearsay. Payment (or what someone has recently paid) is relevant evidence of value. Here, the fact of payment is sought to be proven by a written assertion. That assertion must be true to prove that the payment, in fact, was made. Therefore, the writing is hearsay.
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38. This is hearsay. In order to prove that the spindle was, in fact defective, the statement must be true.[Back to Explanatory Text]
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39. This is not hearsay. The utterance is relevant to prove that the defendant had notice of the risk and, therefore, assumed the risk. It is not hearsay either because it is an operative legal fact or because it is relevant to prove the effect upon the hearer of the statement, defendant.(29)
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40. This is not hearsay. It is nonassertive conduct as presented. Yet, the evidence could be in various forms that might require further analysis. If P hired W and said to him "collect the sum from D" that would be a direction and, for that reason, not an assertion, and thus not a statement or hearsay. If one assumed that P said to W, "D owes me the sum, I hire you to collect it," that would be a direct assertion of the matter sought to be proved and thus would be hearsay.
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44. This is hearsay. The statement W made to his wife must be true to prove that D had a revolver. Even if W is present in court and testifying, this would still be hearsay. W's presence in court would not qualify the statement as being within FRE 801(d)(1)(B) because the requisite charge of recent fabrication or improper influence or motive is not present.
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50. This is not hearsay. The statement is only offered to fix the time, not for the truth of the matter asserted.
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51. This is not hearsay. Although it is an out-of-court statement that is offered for the truth of the matter asserted and, under the common law it would be hearsay, FRE 801(d)(2) declares such admissions to be nonhearsay. The fact that the admission is one by an accused in a criminal case, and amounts to a confession, does not affect this result.
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52. This is not hearsay. Silence is not a statement. Therefore, there is no evidence susceptible to hearsay analysis. There are two other matters that this problem raises in modern times. First, is the issue of the accused's right to remain silent under principles of Miranda v. Arizona.(30) If Miranda principles applied, then the silence would be inadmissible on those grounds. Second, is the issue of silence in the face of an accusation, which would implicate the issue of an admission by adoption, or silence. That question is not presented in this question, which asks only if the evidence is hearsay or nonhearsay.
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53. This is hearsay. The evidence is a written statement that the defendant was convicted previously of the same offense. The statement must be true to prove the fact asserted. Therefore, it is hearsay. This problem, of course, raises issues of admissibility of uncharged acts that probably violate the character evidence rules, depending on the crime charged. Moreover, if the evidence were admissible under the character evidence rules, the hearsay evidence of the judgment of conviction would be admissible within FRE 803(22).
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54. This is hearsay. This problem illustrates the fact that a judgment of conviction contains more than one level of hearsay. But for the exception, FRE 803(22), the fact of a jury verdict (or judge determination) of guilt, could not be admissible to prove that the convicted person committed the acts underlying the charged offense.
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55. This is not hearsay. First, there is no statement; the evidence is a description of observation of nonassertive conduct. Second, the evidence is relevant to prove the state of mind of the husband, and it does so circumstantially.
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56. This is not hearsay. The statement is an operative legal fact-an offer of a reward, which when accepted by performance, completes a contract.
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57. This is not hearsay. Evidence in the form presented in the problem, on its face, qualifies as nonassertive conduct. However, one could envision various forms that the evidence could take that would be hearsay. For example, if an FBI agent, in offering the reward, asserted that the defendant, having committed the crime, was wanted.(31)
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58. This is not hearsay. Of course, if one thinks about it, how does one know who one's father and mother are? If the claimant were pressed and testified that the reason he knew the deceased was his father was because his "mother" or "father" told him so when he was a child, that would be hearsay. The line between personal knowledge and gaining information from someone else's assertions is rather blurred in this situation.
59. This is an out-of-court statement that must be true to be probative. Under FRE 801(d)(2) it is classified as nonhearsay. To the extent that paternity depends upon biological fact, the assertion can prove paternity only if it is true.
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60. This is not hearsay. Non-human evidence is not hearsay. The admissibility of this evidence depends upon a proper foundation for accuracy being laid, but does not implicate the hearsay rule.
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61. This is not hearsay. The evidence of the statement by the house guest reveals circumstantially that the declarant possesses intimate knowledge that could only be gained in limited ways-one of them supporting the proponent's proposed use of the evidence. This is a classic example of the "traces of the mind" theory of nonhearsay use of a declarant's statement.(32)
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62. This is not hearsay. Utterance of marriage vows are operative legal facts-they are the exchange of promises that are the marriage contract.
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63. This is not hearsay. There is no statement. The acts of the defendant constitute circumstantial evidence of his knowledge, but are not statements because there is no intent to assert anything.(33)
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64. This is not hearsay. Dead people do not speak. Therefore, the utterance of any words constitutes evidence that the declarant is alive. The statement need not be true to be probative in this sense and, therefore, the statement is not hearsay.
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65. This is not hearsay. Non-human evidence does not constitute a statement under the FRE. Animal behavior, therefore, is not subject to the hearsay rule. Given a proper foundation, such evidence may be admissible.(34)
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66. This is not hearsay. It is either not a statement because in the form of a command, nonassertive conduct, or, if an assertion, is offered for something other than the matter intended to be asserted (i.e., circumstantial evidence of the belief of the declarant that the recipient supplies pornography).(35)
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67. This is not hearsay. This is not a statement because the screams were not intended as an assertion by the plaintiff. It is nonassertive conduct.
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68. This is not hearsay. There is no evidence of a statement. The problem presents a foundational question-whether if there had been nagging, the neighbor would have been a position to hear it. However, the hearsay rule is not implicated.(36)
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69. This is not hearsay. It is a statement, but the statement being made while the declarant was testifying is excluded from the very definition of hearsay under FRE 801(c).
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70. This is nonhearsay under FRE 801(d)(2), admissions, even though the evidence contains a statement within a statement, both of which were made out of court and offered to prove the truth of the matter asserted. The letter is an admission by the agent acting on behalf of the party defendant, and defendant's statement contained in the letter is his own admission.
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71. This is not hearsay on a number of grounds. It is not a statement, because it is in the form of a direction. It is not offered for the truth of any matter asserted, since there is no assertion. It is also an operative legal fact, creating the legal duty of a driver approaching the sign to stop.
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72. This is hearsay. The certificate is a statement in writing offered to prove the truth of the matter asserted therein.(37)
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73. This is not hearsay. There is no evidence of a statement. The conduct described is not in the form of an assertion.
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74. This is hearsay. This is a direct assertion of the then-existing state of mind of the declarant and is offered to prove that state of mind. Therefore, the statement must be true to be probative.(38)
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75. This is hearsay. The conduct was intended as an assertion of the fact that the spouse was not at home; therefore, it is a statement and, since it is offered for the truth of the matter asserted, it is hearsay.
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1. Szymkowski v. Szymkowski, 432 N.E.2d 1209 (Ill. App. Ct. 1982) (client's conversation with attorney about settlement was improperly excluded at trial; because it dealt with their agency relationship and was admissible as an operative legal fact); Heil v. Zain, 51 A.2d 74 (Md. 1947) (will was admissible as an operative legal fact).
2. Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.supp. 670 (S.D.N.Y. 1963) (survey results wherein those polled might be assumed to have said "I believe that this unmarked lighter is a Zippo" held admissible; one theory of admissibility being that the statements are not hearsay at all, implying that the form of statement might have been "it is a Zippo").
3. See note 1.
4. See Ex Parte Bunn, 611 So.2d 399 (Ala. 1992)(statement used to prove threat upon hearer to explain his conduct in fleeing the state). See also People v. Thurmond, 221 Cal. Rptr 292 (Cal. Ct. App. 1985) (defendant's testimony that he had heard homicide victim had acted violently towards victim's wife would have been admissible to prove effect of statement on hearer, if it were relevant; held it was not relevant in this case). See also People v. Roberson, 334 P.2d 666 (Cal. Dst. Ct. App. 1959) (defendant charged with sale of drugs to undercover officer; defendant denied sale, claiming he had been told the buyer was a police officer; held: evidence admissible to prove defendant, hearer's state of mind).
5. See State v. Bell, 950 S.W.2d 482 (Mo. 1997) (victim's statement that defendant had abused her "was not a declaration of her state of mind but a pure narration of past acts by another" and was thus hearsay).
6. See Web v. Lane, 922 F.2d 390 (7th Cir. 1991)(evidence that decedent had been told by doctor his chances for survival were "not especially good" used as basis for inference decedent believed death was imminent). See also, Comer v. State, 417 N.E.2d 1180 (Ind. Ct. App. 1981)(defendant charged with possession of property stolen from another; informant's statement to defendant that informant had stolen the property was admissible to prove defendant's knowledge that the property belonged to another).
7. See Comer v. State, id. (the same statement by the informer that was admissible to prove defendant's knowledge that the property was stolen, was inadmissible when offered to prove that the property actually was stolen; therefore defendant's conviction was reversed).
8. See cases cited in footnote 1.
9. Id.
10. See Hanlon v. Davis, 545 A.2d 72, 74 (Md. Ct. Spec. App. 1988)("Where one with knowledge of reputation testifies there is no hearsay problem.")
11. See State v. Losson, 865 P.2d 255, 259 (Mont. 1993)( "the statement 'X is no good' circumstantially indicates the declarant's state of mind toward X; . . . [w]e do not care whether X is in fact "no good" but only whether the declarant disliked him).
12. Id. Victim's statements of fear because of defendant's threats to kill were held admissible to prove, not the threats to kill, but the declarant's fear. See also People v. Stevens, 571 N.Y.S.2d 102 (N.Y. App. Div. 1991)(alleged rape victim's statements upon entering defendant's car were admissible nonhearsay to both her state of mind and the effect upon defendant with respect to his consent defense).
13. Id.
14. See Szymkowski v. Szymkowski, 432 N.E.2d 1209, 1212 (Ill. App. Ct. 1982)(statements by client to attorney regarding whether or not to accept a settlement held to be operative legal fact: the existence and extent of an agency relationship is contractual in nature and . . . statements to . . . counsel delineating the scope of the contract were admissible on this basis.")
15. Id.
16. See Long v. Asphalt Paving Company of Greensboro, 268 S.E.2d 1, 4 (N.C. Ct. App. 1980) (declarant's statement as to where the hearer could obtain asphalt was not hearsay because it was not offered to prove where asphalt could be obtained, but rather to prove business was being transacted during the discussion.)
17. Id. Evidence that two people had walked around particular area was not hearsay because their conduct was not intended as an assertion; nonetheless the evidence was relevant and admissible to prove that they were conducting business.
18. McCormick, The Borderland of Hearsay, 39 Yale L.J. 504 (1930). The Advisory Committee's Note to FRE 801(a) does not cite McCormick, but in describing how nonassertive conduct is not hearsay, the note says: "nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred."
19. Id.
20. Id.
21. See, State v. Collins, 886 P.2d 243 (Wash. Ct. App. 1995)(calls to apartment where defendant was arrested wherein the callers said they needed or wanted "something" was admissible as nonhearsay to prove the callers' implicit belief that they could get drugs through the defendant or at the apartment).
22. See State v. Byrd, 579 N.E.2d 457 (Ind. Ct. App. 1991)(evidence that deceased victim reacted to news that the defendant "was back" by huddling in the corner of the kitchen trembling was nonhearsay because it was nonassertive conduct and was admissible to prove victim's fear of defendant).
23. See note 1. This problem presents the same issue as in question numbers 1 and 10.
24. See notes 16-17 and accompanying text.
25. See discussion in Clark v. United States, 412 A.2d 21, 25 (D.C. 1980)(dicta).
26. Both State v. Byrd, 579 N.E.2d 457 (Ind. Ct. App. 1991), discussed in note 22 and Clark v. Untied States, 412 A.2d 21, 25 (D.C. 1980), cited in note 25 relate to the use of evidence of conduct to prove circumstantially the feelings of the actor.
27. See United States v. Brown, 490 F.2d 758, 762-64 (D.C. Cir. 1974)(defendant's murder conviction reversed where state of mind evidence of victim was erroneously admitted at trial; the court's extensive discussion of various uses of state of mind evidence is quite interesting).
28. See Estate of Raketti v. Leino, 340 N.W.2d 894, 899 (N.D. 1983)(statements pertaining to payment were operative legal facts and not hearsay).
29. See Safeway Stores v. Combs, 273 F.2d 295 (5th Cir. 1960)(store manager's statement, "Lady, please don't step in that ketchup" was not hearsay; held it was an operative legal fact). See also, Ex Parte Bunn, 611 So.2d 399 (Ala. 1992)(statement made by defendant's roommate to defendant that victim's family had threatened defendant's life was erroneously excluded at trial; held the statement was admissible to prove the effect it had on the hearer to explain the reason he left town).
30. 384 U.S. 436 (1966).
31. See notes 16-18.
32. A high profile example of the traces theory is the alleged child molestation case involving rock superstar Michael Jackson. A young boy claimed to have been molested by Jackson and described a unique mark on Jackson's genitalia. The criminal case never developed into a prosecution, and the potential civil case was settled on undisclosed terms. During the investigation, however, Jackson was searched, and his body inspected and photographed. In the event of a trial, the boy's statement describing the unique mark could have been admitted under the "traces" theory, and the photograph could have been admitted to display the mark for comparative purposes.
33. See notes 16-18.
34. See State v. Wanczyk, 482 A.2d 964 (N.J. Super. Ct. Law Div. 1984)(in holding bloodhound behavior evidence admissible, court discusses foundation required for such admissibility).
35. A classic modern version of this hypothetical is United States v. Zenni, 492 F. Supp. 464 (E.D. Ky. 1980)(telephone calls to place bets admitted as nonhearsay evidence that the house called was used to take bets). See also, United States v. Garcia, 726 F. Supp. 1457, 1468 (E.D. Pa. 1989)(telephone calls in which callers said they were expecting drug deliveries from occupants of apartment were admitted as nonhearsay evidence that the apartment and its occupants were a known source of drugs).
36. See Wilson v. Clancy, 747 F. Supp. 1154, 1158 (D. Md. 1990)(offer of affidavit in support of summary judgment in which silence of testator on critical fact was noted; held: silence is not within the "realm" of hearsay, "at least where there is no showing of intentional silence on particular occasion intended as assertion when silence was kept.")
37. See Steven v. Bordenkircher, 746 F.2d 342 (6th Cir. 1984)(admission into evidence of death certificate at murder trial without proper foundation violated hearsay rule and right of confrontation; held: habeas corpus granted).
38. See Clark v. United States, 412 A.2d 21 (D.C. 1980)(declarant-victim's statements of fear of defendant were hearsay and, though within the state of mind exception, were not relevant to an issue in the case and, therefore, were inadmissible).