S. Schane, LIGN 105, Law & Language

 

Written Assignment - Hearsay II

 

Decide which of the following out-of-court statements would be excluded as evidence by the hearsay rule.  The person making the statement is NOT in court but his or her utterance is offered by a third person who is the witness. Give reasons based on speech act theory  (e.g. “the utterance is locutionary”). Don't just answer "yes" or "no".

1.       Issue:  Whether X had been looking for John Henry.

X’s statement:  Where is John Henry?

 

        Not hearsay: Questions are implicit directive illocutions. This particular question is equivalent to the explicit                directive: “I ask you to tell me where John Henry is.” Directives are never hearsay.

 

2.       Issue:  Whether X had made an illegal bet with a bookie.

X’s statement over the phone:  In the third race I wanna bet $250 on Mala Suerte.

 

        Not hearsay: A bet is a type of commissive illocution, because the speaker commits him/herself to pay up if               s/he loses. Commissives are not hearsay.

 

3.       Issue:  Whether X knows some French.

X’s statement:  I can speak French.

 

        Hearsay: An assertive whose propositional content speaks directly to the issue.

 

4.       Issue:  Whether X knows some French.

X’statement:  Bonjour!  Comment allez-vous?

 

        Not hearsay: These are French words. Language properties are locutions. Locutions are never hearsay.

 

5.       Issue:  Whether X knows some French.

X’statement:  Je parle un peu le français.

 

        I call this one Schane’s paradox. It can be both hearsay and nonhearsay, depending on how you look at it.                Nonhearsay for the reason given in 4,

        but hearsay for the reason given 3 providing you understand French and know what the statement in 5 means.

 

6.       Issue:  Whether Y felt threatened.

X’s statement to Y:  I’ll break your legs if you go to the police.

 

        Not hearsay. Perlocution. Y felt threatened because of what X said to him.

 

7.       Issue:  Whether X believed that her jeans were Kelvin Kline.

X’s statement:  These are my favorite Kelvin Kline jeans.

 

        Not hearsay. State of mind (belief). X’s assertive illocution is equivalent to the following statement about state          of mind: “I believe that these are my favorite Kelvin Kline jeans”.(Note furthermore that the issue asks about         belief.)

 

8.       Issue:  Whether X has positive feelings about Y.

X’s statement:  Y is cool, intelligent, and quite handsome.

 

        Not hearsay. Locutions. X has chosen English adjectives that express positive qualities.

 

9.       Issue:  Whether X has positive feelings about Y.

X’s statement:  I really like Y a lot.

 

Once again it depends. It would be hearsay from the traditional definition (as stated for example in the Federal                 Rules of Evidence)—for this statement asserts what is to proved. Nonetheless, it would be admissible into    evidence as a permitted state-of-mind exception. In speech act theory this statement would not be hearsay at                 all. It can be converted to an explicit statement about state of mind: “I believe that I really like Y a lot”.

 

10.    Issue: Whether X had slandered a business competitor Y.

X’s statement to various customers:  Y is dishonest and will cheat you if you do business with him.

 

        Not hearsay. Locution. These are the kinds of words (‘dishonest’, ‘cheat’) that are typically slanderous.

 

11.    Issue: Whether X thought that he would die soon.

X’s statement:  I don’t have much longer to live.

 

        Not hearsay. State of mind (of speaker). Equivalent to: “I believe that I don’t have much longer to live.”

 

12. Issue: Whether a sweater given by X to Y was a birthday present.

      X’s statement (when handing the sweater to Y):  This is your birthday present.

 

                Not hearsay: Declaration. The sweater becomes Y’s simultaneous with X’s uttering these words.

 

13. Issue:  Whether X’s prior statement is inconsistent with his present claim that he did have sex

with the person in question.

      X’s statement in a previous deposition:  I never had a sexual relationship with that woman.

 

X’s present claim is: “I had a sexual relationship with that woman.” To try to prove that X was lying under oath, the prosecution brings in a prior out-of-court statement: ‘I never had a sexual relationship with that woman.’. The earlier out-of-court statement has been resurrected for the purpose of impeachment – to show that X has made contradictory assertions. A comparison of the two statements reveals that although they have a similar propositional content, one of the utterances asserts that the propositional content matches an outside event of having sex with that woman, whereas the other utterance denies such a match. The locutionary interest of these two utterances lies precisely in their grammatical and logical inconsistencies. Not hearsay.

 

 

14. Issue: Whether X had been threatened by Y.
      Y's statement to X: "If you come on my property, I'll send my German shepherd after you."

               

                Not hearsay. Perlocution. X felt threatened because of what Y said to him.

 

15. Issue: Whether Y owns a German shepherd.

      Y's statement to X: "If you come on my property, I'll send my German shepherd after you."

 

                Hearsay. Here a part of the propositional content (i.e. the second clause) asserts that Y has a German shepherd,        and it is being offered to prove the truth of what it asserts.