76. This is not hearsay. The statement is not being offered for the truth of the matter asserted, but rather for the effect it had upon the hearer.(1)

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            77. This would be hearsay if offered by the defense to prove that the victim was the aggressor, based on the reasoning that if V had previously knifed three people, it is more likely that he acted first to attack D. If offered for this purpose, there is no exception within which it would fit. The evidence might also be offered by the accused to show that he was not the first aggressor because he feared V and, therefore it would be less likely to have attacked first. From this conclusion, one could reason then, if D did not attack first, it would be more likely that V did. On this reasoning, the evidence would not be hearsay because it would still be offered for the effect on D, the hearer.

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             78. This is not hearsay. It is a pristine example of an operative legal fact. The words constitute an acceptance of an offer and form a contract (if the other elements of a contract are proven). The mere utterance of the words creates a legal right on the part of the person to whom the acceptance was transmitted was made (2)

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             79. This is an out of court statement and is offered for the truth of the matter asserted. The question is whether it is an admission or not. If an admission, then it is not hearsay under the FRE, though it would be deemed within an exception at common law. Whether or not it is an admission depends upon whether the declarant has adopted the reported incident as true, or whether the declarant is only reporting that he heard about the incident. If D's statement that "he thought it was too bad" was found by a court to be an assertion of the belief that the incident occurred, then the statement would be an admission of the event as well and admissible in evidence for that purpose.(3)

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             80. This is hearsay. The statement by N would have to be true to prove that P had fallen through the porch. From the facts that N "rushed" and "shouted,"one could conclude that the statement qualifies as an excited utterance. The problem is that there is no other proof of the exciting event given in the problem, other than the statement itself. Under FRE 104(a), the judge may determine that the event took place as a preliminary matter and is not bound by the rules of evidence in making that determination. If the judge found the existence of the event for purposes of the exception, then the statement would be admissible within the excited utterance exception.(4)

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             81. This is not hearsay. The statement is not offered to prove the facts asserted therein. The statement is being offered to show that D had heard the statement when N made it in D's presence. The statement thus is relevant merely because it was uttered.(5)

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             82. There are two out-of-court statements here, both offered for the truth of the matter asserted. The first, D's testimony at the prior trial, is an admission and, under FRE 801(d)(2), is nonhearsay. The second statement is the written transcript of D's testimony. It is hearsay, but is admissible within one or more exceptions. Court reporters' transcripts are usually admissible as business records, since reporters are usually entrepreneurs, not public officials. Therefore, with the proper foundation, the transcript would be within the business records exception. In the event a court reporter is a public official the transcript, with the proper foundation, could be admitted within the public records exception. If the court reporter testified, the pertinent portion of the transcript could be read into evidence under the past recollection recorded exception.(6)

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             83. There are three out-of-court statements here, all offered for the truth of the matter asserted. The first, D's statement, is an admission (assuming it qualifies as an admission of the underlying event, as opposed to just an admission that D heard about the event) and, under FRE 801(d)(2), is nonhearsay. The testimony of W must be true to be probative and thus is hearsay, but it is within the former testimony exception. The transcript also is offered for its truth and thus is hearsay; it is within either the business records, public records, or past recollection recorded exceptions, just as in the last question.

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             84. This is hearsay. The out-of-court statement, by W to her husband, is being offered to prove the truth of the fact asserted therein, that D had possessed a revolver. Even if W is on the witness stand, the statement is one made out-of-court, not while the declarant was testifying. Therefore, it is hearsay. However, it is within the present sense impression exception, since it is a contemporaneous description of an event perceived by the declarant.(7) If W first testified that she observed the revolver, this statement would still be hearsay. It would not qualify as a prior consistent statement, exempted from the operation of the hearsay rule by FRE 801(d)(1)(b) because the specific requirements of that rule are not met.(8)

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             85. This is not hearsay. Dead people do not speak. The truth of the utterance is not necessary for the statement to be relevant on the issue for which it is offered. Therefore, the statement is not hearsay.

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             86. This is hearsay. The statement is a direct assertion of a fact that must be true to prove that the declarant had injuries. The evidence that V's head hurt makes it more likely that V suffered an injury. The statement falls within the exception of FRE 803(3), as a statement of the declarant's then existing mental, emotional, or physical state.

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             87. This question is virtually identical to Question 2. This is not hearsay. It is Professor Morgan's example of an indirect assertion of a declarant's state of mind of belief. It is to be contrasted with the direct assertion of the belief: "I believe I am the Pope." That direct assertion of belief would be hearsay under the FRE assertion based definition, but would be admissible within the state of mind exception to the hearsay rule. Although this problem then seems quite moot, the point is one that is very important in understanding the hearsay rule's definition under the FRE.(9)

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             88. This is not hearsay. W's testimony contains two parts, both of which are admissions by D and therefore are nonhearsay under FRE 801(d)(2). D's assertion to W is a statement and must be true to be probative, but since it is offered against D as a party, it is an admission and thus, under the FRE, is nonhearsay. The conduct described by D in the statement is nonhearsay because it is conduct by D that manifests a state of mind of guilt and therefore is nonhearsay because it is offered against D as an implied admission. Moreover, since D's flight is conduct, it is not a statement, and is not hearsay on that ground alone.

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             89. This question is virtually identical to Question 25. This is not hearsay. First, it is an observable fact. Second, even if one goes behind the fact, any possible conduct or utterances that could lead to X's presence in the asylum, are based either on nonassertive conduct or on statements not intended to assert that X is insane. For example, if X's doctor ordered him to the asylum, the doctor likely intended to treat him. The same could be said for a commitment by X himself, a family member, or a court.

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             90. This question is virtually identical to Question 10. This is not hearsay. The utterance is an operative legal fact. The statement of donative intent accompanying delivery of a gift makes the gift complete as a matter of law. The utterance need not be true to prove that the delivery of the chattel was a gift. Even if the declarant harbored a secret intent that the chattel be delivered for sale, the utterance creates the legal right in the recipient to maintain the chattel as a gift.(10)

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             91. This is an out-of-court statement and, unlike the last question, this statement must be true to be probative, since under the substantive law of personal property, the donative intent that completes the gift upon delivery usually must accompany that delivery. Thus, the statement is not an operative legal fact. However, it is, under FRE 801(d)(2), an admission by a party opponent and, therefore, is not hearsay.

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             92. This too is an out-of-court statement that must be true to be probative-D must have had the stated intent the next day when the pen was delivered in order for the statement to be relevant. However, the statement is an admission by a party opponent and thus is not hearsay under FRE 801(d)(2). The statement is also within the state of mind exception, FRE 803(3). It is a statement of future conduct and is thus within the Hillmon doctrine.(11)

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             94. This is not hearsay. This is non-assertive conduct-there is no utterance here. Further, there is nothing to suggest that the intent of the actor was to make an assertion by engaging in the conduct. There is a need to show that x-ray treatment is usual in the case of cancer, so that the conduct can be shown to reflect the doctor's belief that P had cancer.(12)

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             95. This is hearsay. The doctor's statement to P must be true to prove that P has cancer. There is no exception within which this statement falls.

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             96. This is hearsay. The written record contains a statement that must be true to prove that D has cancer. With a proper foundation, this would be within the business records exception under FRE 803(6).(13)

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             97. Here there are two out-of-court statements offered for the truth of the matter asserted-potential multiple hearsay. The first statement, by P, must be true to prove that he has cancer. If he is a party to litigation, then his statement is an admission by a party opponent under FRE 801(d)(2) and is not hearsay. If P is not a party, then the statement could qualify as a statement made for purposes of medical diagnosis or treatment under FRE 803(4). However, P probably has the knowledge that he has a cancerous tumor because he received the information from some other source. On the other hand, most such information given by a patient to medical personnel is from some other source. Assuming that the assertion by P is admissible, the notation by the receptionist would qualify as a business record, assuming it was within the regular course of the receptionist's business to record patients' statements of their own condition upon admission to the hospital.

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             98. This is not hearsay. It is also non-assertive conduct. The declarant, on the face of it, did not intend to assert the belief that X had good eyesight.. Rather, the declarant intended to assign X to the position of lookout. Therefore, under the FRE, this is nonhearsay. As Professor McCormick put it (and the Advisory Committee agreed), "conduct (other than assertions) when offered to show the actor's belief's and hence the truth of the facts so believed" should not be classed as hearsay.(14)

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             99. This is not hearsay. The statement is not offered for the truth of the matter asserted, that D was in the City. Rather, it is offered to prove that P heard Z say that D was in the city, showing P's knowledge of that fact.(15)

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             100. This is hearsay. The statement must be true to prove that D was in the city. The statement does not fit within any exception.

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             101. This is an out-of-court statement that must be true to prove that P had knowledge that D was in the city. However, it is an admission by a party opponent under FRE 801(2)(d) and is thus nonhearsay.

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             102. This is not hearsay. The statement is circumstantial evidence of the declarant's state of mind of hostility towards D just by the fact that it was made. Even if it were hearsay, it would, however, be within the state of mind exception to the hearsay rule, FRE 803(3).(16)

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             103. W1's statement is hearsay. It must be true to prove that D stole from his employer. It is not admissible within any exception. However, D's silence in the face of the accusation could constitute an adoptive admission (admission by silence), assuming a reasonable person in his position would be expected to deny the accusation.(17) An adoptive admission is nonhearsay under FRE 801(d)(2)(B). W1's accusation would be admissible to prove the adoptive admission, but itself would still be hearsay.

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             104. This is hearsay. The writing is a statement that must be true to prove the license number. However, the statement is within the past recollection recorded exception, FRE 803(5).(18)

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             105. This is not hearsay. There is no evidence of a statement. A photograph is not a statement.

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             108. This is not hearsay. Nonhuman evidence is not hearsay. There is no evidence of a statement involved in the device's output.(19)

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             109. This is not hearsay. The moving picture, like a photograph, is not a statement and thus is not hearsay. D's actions could be viewed as either nonassertive conduct (showing intimate knowledge consistent with guilt) or an admission, both of which are nonhearsay.

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             110. This is not hearsay. Again, a moving picture is not a statement. If there were some conduct of D depicted in the film that could be classed as assertive (or nonassertive) it would be admissible on the issue of voluntariness as nonhearsay-an admission by a party opponent under FRE 801(d)(2).

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             111. This is not hearsay. The police chief's statement is not offered to prove that X had committed a burglary, rather it is offered to prove that D had heard such a statement. If D heard it, D would have a good faith basis for discharging X.(20)

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             112. This is not hearsay. The evidence is still offered to prove D's good faith, for which purpose it need not be true to be probative. It does not matter that the evidence consists of multiple hearsay, as long as D heard it and could reasonably have believed it.

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             113. This is hearsay. The police chief's statement to W (made out-of-court) must be true in order to prove that D heard the statement about X's misconduct. Therefore, the statement is hearsay. It is not within any exception to the hearsay rule.

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             115. This is not hearsay. W1's prior statement is inconsistent with W1's present testimony. Therefore, the prior testimony is relevant for impeachment purposes, on the theory that W1 gave two different accounts of the same event on two different occasions and, therefore, is either mistaken or lying. For this purpose the prior inconsistent statement need not be true to be relevant. Therefore, it is not hearsay. P would be entitled to a limiting instruction that the jury should not consider the prior inconsistent statement for the truth of the matter asserted.(21)

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             116. This is an out of court statement offered for the truth of the matter asserted. The prior inconsistent statement, when offered to prove that D was going slowly, must be true. If the statement were made under oath, subject to the penalties of perjury, and at a trial, hearing, or other proceeding, it would be admissible as nonhearsay under FRE 801(d)(1)(A). Otherwise, the prior inconsistent statement would be inadmissible hearsay (i.e., not within any exclusion, exemption, or exception) when offered for the truth of the matter asserted.(22)

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             117. This is evidence of two out-of-court statements. The first is W1's statement, which, in question 115, when offered for impeachment only is not offered for the truth of the matter asserted and, therefore, is not hearsay. The second is W2's report. That is a written statement, asserting the content of W1's statement and must be true to prove that W1 made the statement. Therefore, it is hearsay. If the report itself is offered into evidence, as the problems seems to say, then it is admissible, with proper foundation, within the business records exception. The portion of the report containing W1's statement, with proper foundation, could also be read to the jury as past recollection recorded.

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             118. This is hearsay. X's direct assertion that he had a pain in his chest must true to prove that he did, in fact, have such pain. That X had a pain in his chest would be relevant to prove that he was ill. The statement, though hearsay, would be within the state of mind exception, FRE 803(3). One could argue that since the statement is not a direct assertion that X was ill, the statement is nonhearsay-i.e., it is only circumstantial evidence of illness. However, the reasoning from pain to the conclusion of illness suggests that the better conclusion is that this is hearsay and within the exception rather than not hearsay in the first instance.

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             119. This statement is not hearsay. It is an operative legal fact in that it designates the purpose, or use, of the payment of the money. In other words, the money could have been delivered for any purpose, and the statement identifies the purpose, thus having the legal effect of extinguishing the debt.

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             120. This is hearsay. The receipt is a written statement by X that X received $3000 from P. To prove that the money was paid, the statement must be true. Therefore, the statement is hearsay. The amount paid for something is relevant to prove value. The receipt, in the hands of P is not within the business records exception since it was not made in the course of P's business. X's statement could qualify as a declaration against interest, since the statement proves that he no longer has a claim for money owed from the sale of the automobile to P. P would have to show that X was unavailable for the statement to be admitted within the declarations against interest exception.

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             121. The out-of-court statement, now by D, still must be true to be probative. However, since D is a party, the statement is nonhearsay as a party admission, under FRE 801(d)(2).

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             122. This is not hearsay. The utterance is relevant to prove that the defendant had notice of the risk and, therefore, assumed the risk. It is not hearsay either because it is an operative legal fact or because it is relevant to prove the effect upon the hearer of the statement, defendant.(23)

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             123. This is an out-of-court statement offered to prove the truth of the matter asserted. If one could conclude that D could reasonably have been expected to disagree with the mechanic's statement if D did not think the statement were true, then D's failure to disagree could qualify as an adoptive admission under FRE 801(d)(2)(B). With no other circumstances described, it is not likely that a court would find this to be an adoptive admission.(24) Failing that, the statement would be hearsay when offered to prove that the spindle was defective. It could be admitted as a present sense impression by the mechanic under FRE 803(1).

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             124. There are two out-of court statements here. First, is D's statement that he owns Blackacre. That statement is not hearsay when offered to prove title in D by adverse possession, because it is an operative legal fact. The statement constitutes the elements of hostile, open, and notorious possession, as well as claim of right. P's statement must be true to prove that D actually made the assertions P said he did. However, when offered against P, a party, the statements are nonhearsay as admissions by a party opponent under FRE 801(d)(2).

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             125. This is hearsay. The statement must be true to prove that A was D's agent. The statement cannot be an operative legal fact, for one cannot become an agent merely by self-proclamation. Since the problem presents no facts suggesting that there is any other evidence of A's agency other than the statement, it is hearsay. It does not appear to be within any exception.

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1. See Ex Parte Bunn, 611 So.2d 399 (Ala. 1992)(statement used to prove threat upon hearer to explain his conduct in fleeing the state). See also People v. Thurmond, 221 Cal. Rptr 292 (Cal. Ct. App. 1985) (defendant's testimony that he had heard homicide victim had acted violently towards victim's wife would have been admissible to prove effect of statement on hearer, if it were relevant; held it was not relevant in this case). See also People v. Roberson, 334 P.2d 666 (Cal. Dst. Ct. App. 1959) (defendant charged with sale of drugs to undercover officer; defendant denied sale, claiming he had been told the buyer was a police officer; held: evidence admissible to prove defendant, hearer's state of mind).

2. Szymkowski v. Szymkowski, 432 N.E.2d 1209 (Ill. App. Ct. 1982) (client's conversation with attorney about settlement was improperly excluded at trial; because it dealt with their agency relationship and was admissible as an operative legal fact); Heil v. Zain, 51 A.2d 74 (Md. 1947) (will was admissible as an operative legal fact).

3. See Cox v. State, 148 N.E.2d 879, 881-82 (N.Y. 1958) (state hospital record recording the cause of injury to a patient based on reports of other patients held not to be an admission of the incident, but only an admission of the reports), citing and discussing, Reed v. McCord, 54 N.E.2d 737 (N.Y. 1899) (employer's statement at coroner's hearing describing cause of injury to employee held an admission even though declarant later claimed he had only heard about the incident).

4. See Advisory Committee's Note to FRE 803(1) and (2).  See also, United States v. Mitchell, 145 F.3d 572 (3d Cir. 1998) (anonymous note left for police that led to arrest of defendant was erroneously admitted at trial as a present sense impresssion or excited utterance, without proper foundation; held: conviction overturned).

5. See Safeway Stores v. Combs, 273 F.2d 295 (5th Cir. 1960)(store manager's statement, "Lady, please don't step in that ketchup" was not hearsay; held it was an operative legal fact). See also, Ex Parte Bunn, 611 So.2d 399 (Ala. 1992)(statement made by defendant's roommate to defendant that victim's family had threatened defendant's life was erroneously excluded at trial; held the statement was admissible to prove the effect it had on the hearer to explain the reason he left town).

6. See Costa v. Commissioner of Internal Revenue, 1990 W.L. 16502 (U.S. Tax Ct. 1990)(transcript of statement at prior criminal admissible in civil proceeding as admission of party). See also, United States v. Cruz, 894 F.2d 41 (2d Cir. 1990) (investigative government reports argued to be admissible as party admissions, inconsistent statements, business records, public records, or to refresh recollection; held: grounds for admission argued for first time on appeal would not be granted).

7. See, United States v. Hawkins, 59 F.3d 723 (8th Cir. 1995) (911 tape containing wife's statement that defendant had a gun, and describing the gun, held admissible as a present sense impression).

8. See, e.g., Coltrane v. United States, 418 F.2d 1131 (D.C. Cir. 1968) (pre-FRE statement of theory underlying use of prior consistent statements for jury's evaluation of witness's truthfulness)

9. Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.supp. 670 (S.D.N.Y. 1963) (survey results wherein those polled might be assumed to have said "I believe that this unmarked lighter is a Zippo" held admissible; one theory of admissibility being that the statements are not hearsay at all, implying that the form of statement might have been "it is a Zippo").

10. Szymkowski v. Szymkowski, 432 N.E.2d 1209 (Ill. App. Ct. 1982) (client's conversation with attorney about settlement was improperly excluded at trial; because it dealt with their agency relationship and was admissible as an operative legal fact); Heil v. Zain, 51 A.2d 74 (Md. 1947) (will was admissible as an operative legal fact).

11. See United States V. Hartmann, 958 F2d 774, 784 (7th Cir. 1992) (murder victim's declared intent to carry out "juice loan scam" admissible to show intent to execute plan as well as to prove declarant in fact carried out that plan).

12. See Long v. Asphalt Paving Company of Greensboro, 268 S.E.2d 1, 4 (N.C. Ct. App. 1980) (declarant's statement as to where the hearer could obtain asphalt was not hearsay because it was not offered to prove where asphalt could be obtained, but rather to prove business was being transacted during the discussion.)

13. See Manocchio v. Moran, 919 F.2d 770, 780 (1st Cir. 1990) (autopsy report held to be a medical diagnosis of cause of death and admissible under business records exception).

14. McCormick, The Borderland of Hearsay, 39 Yale L.J. 504 (1930). The Advisory Committee's Note to FRE 801(a) does not cite McCormick, but in describing how nonassertive conduct is not hearsay, the note says: "nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred."

15. Ex Parte Bunn, 611 So.2d 399 (Ala. 1992)(statement made by defendant's roommate to defendant that victim's family had threatened defendant's life was erroneously excluded at trial; held the statement was admissible to prove the effect it had on the hearer to explain the reason he left town).

16. See discussion in Clark v. United States, 412 A.2d 21, 25 (D.C. 1980)(dicta).

17. See State v. Carlson, 808 P.2d 1002 (Or. 1991) (extensive exploration of admissibility of adoptive admission). Compare Pawlowski v. Eskofski, 244 N.W. 611 (Wis. 1932) (stranger says to defendant that tire on his car will blow out; defendant responds, "Iíll take my chances;" tire blows out and plaintiff guest sues offering statement as adoptive admission; held: statement inadmissible hearsay; defendantís reaction was reasonably construed as a dissent).

18. See Scott v. Greater Richmond Transit Company, 402 S.E.2d 214 (Va. 1991) (past recollection recorded explained and discussed).

19. See State v. Stribel, 609 P.2d 113 (Colo. 1980) (police car speedometer calibration test admissible in speeding prosecution).

20. See Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1322-23 (11th Cir. 1982) (statement properly admitted into evidence, not as to the truth of the matter the stated, but to show Sears had acted in good faith in firing plaintiff for reasons other than age).

21. See United States v. Tafollo-Cardenas, 897 F.2d 976 (9th Cir. 1990) (failure to instruct jury that witness's prior inconsistent statements could be used only for impeachment purposes was error; defendant's conviction reversed).

22. Id.

23. See Safeway Stores v. Combs, 273 F.2d 295 (5th Cir. 1960)(store manager's statement, "Lady, please don't step in that ketchup" was not hearsay; held it was an operative legal fact). See also, Ex Parte Bunn, 611 So.2d 399 (Ala. 1992)(statement made by defendant's roommate to defendant that victim's family had threatened defendant's life was erroneously excluded at trial; held the statement was admissible to prove the effect it had on the hearer to explain the reason he left town).

24. See State v. Carlson, 808 P.2d 1002 (Or. 1991) (extensive exploration of admissibility of adoptive admission).