Section 15.11 Verbal Acts/ Res Gestae

• Library: Evidence 2017

V. (§15.11) Verbal Acts/Res Gestae

The term “res gestae” raises significant pedagogical issues. Courts, in attempting to precisely define this example of non-hearsay, have found it so difficult that the Supreme Court of Missouri, in Meyers v. Smith, 300 S.W.2d 474, 477 (Mo. 1957), referred to the rule as the “shibboleth of the meaningless Latin phrase.” It is so imprecise that the Supreme Court of Missouri kindly killed the term in 1995 in the decision of Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 121 (Mo. banc 1985), in which the Court held that it “will no longer recognize the phrase ‘res gestae’ as carrying significant meaning to support either the admission of or an objection to proffered testimony.”

You may be wondering, what is a shibboleth? The term originates from the Hebrew language and literally means that part of a plant containing grains. This is not, however, its modern meaning. The modern meaning comes from the Bible in the book of Judges. There the story of the war between the inhabitants of Gilead and Ephraim is told. Gilead won the battle. The surviving Ephraimites sought to escape the battle by crossing the river Jordan to return back to their home territory. The Gileadites stopped them while crossing the river. To identify and kill only Ephraimites, the Gileadites asked each suspected Ephraimite to say the word shibboleth. The Ephraimites’ language did not contain the “sh” sound, so those who pronounced the word as “sibboleth” were identified as the enemy. The Bible states that as a result of this manner of identifying the enemy, over 2,000 Ephraimites were killed. So today, the word shibboleth signifies a word or custom used to distinguish members of a class or group, yet evolved over time to simply identify an old belief or saying that, although repetitively cited, is not true.

The phrase res gestae is discussed in this chapter only to alert readers as to its use in prior caselaw. It...