S. Schane, LIGN 105, Law & Language
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.