1409 (Read this page carefully, it contains some very difficult concepts)

This is a good example of something that is technically phrased as a question, but really is an assertion, so I would not argue that this is merely a question.

I would argue instead that this testimony is not hearsay because it is not offered for its truth. There is no issue in the case about whether Elvis heard rumors. It is just part of conversation which taken as a whole, shows that Elvis is alive.

This is also potentially hearsay within hearsay, or double hearsay. See Rule 805. Newt heard Elvis say something (hearsay number one), and what Elvis said was that he heard other people say things (hearsay number two). The analysis of hearsay number one would be the same -- not for its truth -- and the argument for hearsay number two (what Elvis heard) is that it is also not beiong offered for its truth but to show why Elvis was motivated to make contact with a lawyer and reveal that he is still alive.  

Go back for a minute to item 4, where Elvis says he is alive -- a statement of fact offered for its truth, since whether he is alive is the central issue in the case. But, if anything he says is relevant as part of a conversation which, taken as a whole, shows he is alive, isn’t the statement “As you can see, I am alive,” also part of that conversation and not offered for its truth?

Can you really argue that Elvis’ statement “I am alive” is not offered for its truth, but only to show that he is capable of carrying on a conversation, which is circumstantial evidence that he is alive? Sure. I told you you’d never really understand hearsay.

Questions? Email tanford@indiana.edu and refer to 1409

In item 9, Newt says that he nodded in response.

Is Newt's conduct an assertion? When you think you know the answer, click here