The difference between a leading and non-leading question

“What is your name?”  That is a non-leading question.  Compare that with “Your name is John Smith, isn’t it?” That would be leading.  It basically tells the witness what his answer should be. 

Can a witness’s own statement be hearsay?

Yes.  If a witness testifying at trial made a prior statement that a party would like to introduce and that statement was intended as an assertion and is now being offered as substantive evidence to prove the truth of the matter, then the statement would still be hearsay.  It is immaterial whether or not the witness is present in court to be cross-examined with respect to the earlier statement.

Can hearsay be used to impeach?

Whether or not an out-of-court statement is hearsay depends on the purpose for which it is offered.  If it is offered to prove the truth of the matter, it is hearsay.  If offered only to impeach (i.e., discredit) a witness, then it is by definition not hearsay. 

Are depositions hearsay?

graffiti hearsay

A deposition is a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for discovery purposes or for later use in court. As such, it would appear to be quintessential hearsay (i.e., an out-of-court declaration that is asserted for the truth of the matter) and would only be admissible if (1) it were offered for a non-hearsay purpose or (2) it satisfied the “prior recorded testimony” or some other exception to the hearsay rule. 

Is a receipt hearsay?

Whether a receipt constitutes hearsay would depend on the purpose for which it is being offered.  If it is being used to prove the value of an item, it would be hearsay.

Can Silence Be Hearsay?

There might circumstances in which a person’s silence could be interpreted to communicate something.  For example, silence in response to the traditional challenge “speak now or forever hold your peace” during a wedding ceremony could be interpreted to communicate assent. If offered to prove that the “declarant” endorsed the union, it could constitute hearsay, thereby requiring the proponent of the evidence to introduce it through an exception to the hearsay rule. 

Can a Photograph be Hearsay?

hearsay graffiti

Conceivably, yes.  Hearsay is as an out-of-court assertion that is offered to prove the truth of the matter asserted. If the evidence in question satisfies all three conditions (that is, it is out-of-court, it is an assertion, and it is offered for its truth), then it would be hearsay and could only be admitted through an exception to the hearsay rule. 

“Past Recollection Recorded” versus “Refreshing Recollection”

“Past recollection recorded” is frequently confused with the “refreshing the recollection” of a witness.  The former is an exception to the hearsay rule.  The latter isn’t.  In both cases, a witness is presented with something after failing to… Read More

Laying the Foundation for an “Excited Utterance”

Q. Officer. When you arrived, the altercation was still on-going, right?
A. That’s right.
Q. So you have no idea how it started?
A. No, I don’t.
Q. When you arrived, my client had a bottle in her hand?
A. Correct.
Q. And he had a piece of wood in his hand, right?

Impeachment on Personnel Records

Q:        If you lost your body worn camera, you could get written up for that, right? A:         Yeah, if you lost it, yes.  But in this situation, it was knocked off or fell off, whatever have you –… Read More