1403

I would argue that this testimony is not hearsay because it is a question, not an assertion. To the extent that it implicitly asserts that "it is a fine night," this assertion is not offered for its truth -- no one cares whether it was or wasn't a fine night -- but merely as a social greeting.

See how the game works? Find the loophole.

Note also that when arguing that evidence is NOT and assertion, or NOT offered for its truth, you must also say what it IS and what relevant purpose it IS offered for. Thus:

Not an assertion but a question.

Not offered to prove the truth of the assertion that it’s a fine night, but offered as a social greeting that got the conversation started.

Let’s think for a moment what the plaintiff’s lawyer could have done to forestall the hearsay objection in the first place. All of hearsay has to do with whether something someone said is admitted under one of the myriad exclusions and exceptions. It is the proponent’s job to recognize that some evidence is potential hearsay, decide what argument he or she will make that it falls into an exclusion or exception, and lay the foundation for it before eliciting the evidence.

So instead of

2A    Q. Did he speak to you?
        A: Yes
        Q: What did he say?
        A. He said, "How are you this fine night?"

Lay a foundation showing that you are asking about a question used as a social greeting, not an assertion used to prove its truth..

2B    Q. Did he greet you?
        A: Yes
        Q: Did he ask you a question?
        A: Yes.
        Q: What did he ask?
        A. He said, "How are you this fine night?"

Questions? Email tanford@indiana.edu and refer to 1403

In item 3, Newt quotes himself as saying "I thought you were dead!" If the defense objects as hearsay, what is the best response? When you think you know the answer, click here.