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Today's Question:

In which of the following situations would the offered testimony be hearsay?

(A) The plaintiff, the assignee of a farmer’s wheat crop, proposes to introduce the testimony of a witness who will testify that he heard the owner of a grain warehouse tell the farmer, as they stood in front of three grain solos, that the farmer’s wheat is stored in the far right grain silo.

(B) The plaintiff, suing the defendant for slander, proposes to introduce a witness who will testify that a friend overheard the defendant call the plaintiff a thief.

(C) The plaintiff, in a libel action, proposes to testify that shortly after the alleged libelous statements were published, strangers called him a racketeer.

(D) The defendant, claiming that funds transferred to him were a gift, proposes to testify that as the funds were given to him, the person delivering the funds said, “Merry Christmas.”

The Answer is : B.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Statements which are offered for other purposes, or which fit into the exceptions to the hearsay rule, will be admitted into evidence at trial.

Choice (A) is not hearsay because the statement is a verbal act. The statement accompanies conduct, which is material to some issue in the case and aids in giving legal significance to the conduct. Here, the issue is who owns what wheat. The statement is a verbal act indicating how the wheat is to be divided, and is not hearsay.

Choice (B) is hearsay because the witness is asserting that the defendant made the slanderous statement to a friend. There is no indication that the witness was present or heard the statement made. The friend could testify to the libelous words of the defendant because they are an admission and because they are the legally operative facts which are the basis of the cause of action. However, when the witness testifies to what the friend said the defendant said to him, we must believe the friend before they are relevant. Therefore, the witness’s statement is an out-of-court statement offered for its truth.

Choice (C) is not hearsay because the statements are legally operative facts, which show the effect of the libelous material upon the plaintiff’s reputation in the community.

Choice (D) is not hearsay because the words give character to an otherwise ambiguous act. The transfer of the one thousand dollar bill could either be a loan or a gift. However, the transfer when accompanied by the words “Merry Christmas” leads to an inference that the transfer was a gift rather than a loan. The trier of fact does not need to believe that the person delivering the funds wanted the defendant to have a Merry Christmas to draw the inference and, therefore, the words are not assertive.

Choice (B) is correct because the statement is both hearsay and comes within no hearsay exception.

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