15. Hearsay (6A) Flashcards
What is required for evidence to be hearsay?
1) Statement made by someone other than Declarant
- Oral/Written conduct
- Non-verbal conduct (intended as assertion)
- Human (NOT animal/machine)
2) Offered to prove truth of matter asserted
What is the purpose of hearsay?
Not admit evidence because opponent party is unable to ‘contemporaneously’ cross-examine;
- Actual declarant’s perception/memory/sincerity
- Witness-Declarant at time of making hearsay statement
What type of out-of-court statements are admissible (non-hearsay)?
Verbal acts/Legally operative facts (to prove whether statement was made, NOT whether it was true)
- Words of contract/defamation/bribery/cancellation/permission
Effect on listener/reader (to prove whether statement was made, NOT whether it was true)
- Notice/Knowledge
- Motive
Declarant’s state of mind (circumstantial evidence that Declarant believed his words to be true/took subsequent steps in conformity with intent to commit act)
- Insanity
- Knowledge
What is the difference between direct and circumstantial evidence of Declarant’s state of mind?
BOTH admissible
Direct evidence
- Motive/Intent
- To prove D had intent
Circumstantial evidence
- Insanity
- Knowledge
- To prove D believed his words to be true
- To prove D took subsequent steps in conformity with intent
What is required for prior inconsistent statements to be admissible as substantive evidence (non-hearsay)?
1) Witness who made statement must be on W stand
- Subject to ‘cross-examination’
2) Prior inconsistent statement made under ‘penalty of perjury’ (prior trial/proceeding/deposition)
What is required for prior consistent statements to be admissible as substantive evidence (non-hearsay)?
1) Testifying witness
- Subject to ‘cross-examination’
2) Prior consistent statement made under oath+ either;
- Rebut charge that W is lying/exaggerating due to motive + Prior consistent statement made BEFORE onset of alleged motive to lie/exaggerate
- Rehabilitate W’s credibility after being impeached on NON-character ground and NOT motive to lie/exaggerate
What is required for prior identification statements to be admissible as substantive evidence (non-hearsay)?
1) Testifying witness
- Subject to ‘cross-examination’
2) Prior statement made to identify person
- Oath/NO oath
3) Declarant ‘perceived’ person
What is required for party-opponent admissions to be admissible as substantive evidence (non-hearsay)?
1) Party’s statement offered against himself
2) Offered by Party to lawsuit
- NOT witness
3) Opinion
- NO personal knowledge required
What is required for party-opponent’s judicial admissions to be admissible as substantive evidence (non-hearsay)?
Formal judicial admissions => Conclusive
- Pleadings/Discovery statements
Informal judicial admissions => NOT conclusive (can be explained)
- Testimony
What is required for party-opponent’s adoptive admissions to be admissible as substantive evidence (non-hearsay)?
Adopt another’s statement
- Expressly/Impliedly
Silence (Implied admission)
1) Party heard + understood accusatory statement
2) Party was physically + mentally capable of denying accusatory statement
3) Reasonable person would have denied accusatory statement
4) NOT police’s accusatory statement in criminal case
What is required for party-opponent’s vicarious admissions to be admissible as substantive evidence (non-hearsay)?
Authorised spokesperson
- Company’s press agent
Agent/Employee vs Principal/Employer
1) Statement made within scope of agency/employment
2) Statement made during existence of agency/employment relationship
Co-Partner vs Partner
- Statement made within scope of partnership
Co-Conspirator vs Conspirator
1) Statement made to TP
2) In furtherance of conspiracy to commit crime/civil wrong (whether or NOT conspiracy is proven)
3) When Co-Conspirator participated in conspiracy (NOT required for cross-exam)
When are party-opponent’s vicarious admissions not admissible as substantive evidence (non-hearsay)?
NOT joinder
- Co-Plaintiff’s statement vs Co-Plaintiff
- Co-Defendant’s statement vs Co-Defendant
What is the purpose of the Confrontation Clause (6A)
Prevent hearsay evidence vs Accused if Declarant is not available to be cross-examined by Accused
- Even if it falls within hearsay exception!
What is required for hearsay evidence not to be admissible under Confrontation Clause (6A)?
1) Testimonial statement
- Statements made in course of police interrogation (primary purpose - Establish/Prove events for later prosecution) (NOT to aid in ongoing emergency) (NOT child abuse victim’s statement to school teacher)
- Affidavits/Written reports of forensic analysis
2) Declarant is NOT available for cross-examination
- UNLESS Accused intended to prevent Declarant from testifying (Accused’s wrongdoing => Accused forfeits 6A right)
3) Accused had NO previous opportunity to cross-examine Declarant BEFORE trial
4) Statement offered against Accused in ‘criminal’ case
- NOT civil case
When is a declarant not available to testify?
Exempt by privilege
Refusal to testify (despite court order)
Testified to NOT remembering subject matter
Dead/Physically or mentally ill
Absent
1) Beyond trial court’s subpoena reach
2) Proponent NOT able to procure Declarant’s attendance/testimony
- UNLESS able to give deposition testimony
What is required for a former testimony of an unavailable declarant to be admissible under hearsay exception?
1) Given under oath
- Same/Different case
- Same subject matter (different issue)
- Similar parties (NOT same)
2) Party/Predecessor against whom statement is offered had opportunity to develop Declarant’s testimony (direct/cross examination)
- NOT grand jury proceeding (NO opportunity to develop testimony)
What is required for a statement against one’s own interest by an unavailable declarant to be admissible under hearsay exception?
1) Statement against own pecuniary/proprietary/penal interest when made
- Reasonable person would have made if she believed it to be true
- Stranger (NOT co-defendant)
2) With personal knowledge of facts
3) Aware statement was against own interest + NO motive to misrepresent
What is the difference between party-opponent admissions and statement against own interest?
Party-opponent admissions
- NOT made against Declarant’s interest when made
- NO personal knowledge
- Opponent is available to testify
Statements against own interest
- Made against Declarant’s interest when made
- Personal knowledge
- Opponent is NOT available to testify
What is required for a dying declaration by an unavailable declarant to be admissible under hearsay exception?
1) Homicide/Civil case
2) Declarant believed death was imminent
- NO need to be dead (just not available to testify)
3) Declaration concerns cause/circumstances of impending death
What is required for a statement regarding personal/family history by an unavailable declarant to be admissible under hearsay exception?
1) Statement concerns birth/marriage/divorce/death/relationship
2) Declarant is family member
- Includes intimately associated members (family doctors)
3) Admissible document
- Includes marriage certificates/family records/property documents/family reputation (Declarant’s unavailability NOT relevant)
What is required for an excited utterance to be admissible under hearsay exclusion?
1) Statement made under startling event + in relation to startling event
2) Under stress of excitement
- NO time to reflect
What is required for a present sense impression to be admissible under hearsay exclusion?
1) Statement describes/explains event
2) While/Immediately after perceiving event/condition
What is the difference between dying declaration and excited utterance?
Dying declaration
- Declarant NOT available to testify
- Homicide/Civil case
Excited utterance
- Declarant available to testify
- Any case
What is the difference between excited utterance and present sense impression?
Excited utterance
- Startling event
- Before incident
Present sense impression
- NO startling event
- During/Immediately after incident
What is required for a statement regarding Declarant’s state of mind to be admissible under hearsay exclusion?
1) Statement offered to prove;
- Declarant’s present intent (directly in issue)
- Declarant’s future intent (NOT directly in issue)
2) NOT belief/memory
- NOT offered to prove truth of fact remembered/believed
What is the difference between Declarant’s state of mind as hearsay and non-hearsay?
Hearsay
- Direct evidence of Declarant’s state of mind
- Intent/Motive
Non-hearsay
- Circumstantial evidence of Declarant’s state of mind
- Insanity/Knowledge
What is required for a statement regarding Declarant’s physical condition to be admissible under hearsay exclusion?
Present bodily condition
- Made by Declarant (NOT TP) to anyone (friend/spouse/relative)
- NOT for treatment purposes
- Used to show declaration of present pain (NOT to prove bodily condition actually existed)
Medical history/Past/Present bodily condition
- Made by Declarant (NOT TP) to physician/ambulance driver/hospital staff/family/doctor ‘employed to testify’
- For treatment purposes
- Cause/Source of injury is pertinent (NOT fault/identification)
What is required for a business record to be admissible under hearsay exclusion?
1) Business
- For profit/NO profit
2) Entry made in regular course of business
- Hospital records (related to medical diagnosis/treatment)
- NOT Police reports vs criminal defendants (criminal/civil cases)
- NOT self-serving accident reports made in anticipation of litigation
3) Entrant’s knowledge of matter
- Entrant had personal knowledge
- Other person had duty to transmit info to Entrant
4) Entry made near time of event
- When entrant’s knowledge of facts was still fresh in his mind
5) Authentication
- Custodian testimony
- Custodian certifies in writing + gives reasonable written notice to Adverse party
What is required for a recorded recollection to be admissible under hearsay exclusion?
Proper foundation laid
1) W had personal knowledge
2) W made record/directed another to adopt record
3) W made record timely (at time of event)
4) Record accurately reflects W’s mind
5) W has insufficient recollection
What type of public records/reports are admissible under hearsay exclusion?
Public record/report
- Stating office/agency activities
- Stating matters observed pursuant to legal duty (NOT police reports)
- Investigative reports (civil cases)
- Investigative reports vs Government (NOT Defendant) (criminal case)
What is required for public records/writings to be admissible under hearsay exclusion?
1) Prepared by Public Officer
2) Factual observations/conclusions
3) Public Officer’s duty
4) Personal knowledge
2) Made near/at time of event
What is required for statements of absence of public record to be admissible under hearsay exclusion?
1) Custodian’s testimony/certification
2) Diligently searched but failed to find record
=> Prove matter was NOT recorded/never existed
3) Declarant available to testify (Criminal cases only)
- Prosecution gives reasonable written notice to D at least 14 days before trial + D does not object within 7 days of receipt
What is required for certified judgments to be admissible under hearsay exclusion?
1) Felony conviction
- Death/Imprisonment > 1 year
- NOT misdemeanor
- NOT civil judgment (NOT admissible in subsequent criminal/civil proceedings)
2) Either;
- Prove essential fact vs Defendant (criminal case)
- Impeach Witness (criminal case)
- NOT character (UNLESS MIMIC/sexual assault/child abuse)
What is the difference between certified judgments as hearsay exclusion and for impeachment?
Hearsay exclusion
- Felony
- Prove essential fact
- Criminal defendant
Impeachment
- Felony/Misdemeanor involving untruthfulness
- Felony NOT involving untruthfulness
- Discredit credibility
- Criminal defendant/Witness
What is required for ancient documents to be admissible under hearsay exclusion?
1) Authenticated document (Any)
2) Prepared before 1 January 1998
What is required for documents affecting property interests to be admissible under hearsay exclusion?
Deeds/Wills relevant to document’s purpose
UNLESS later dealings with property are NOT consistent with truth/intent of document
What is required for learned treatises to be admissible under hearsay exclusion?
1) Referred to Expert witness
- Relied on by Expert witness
- Called to attention of Expert witness during cross-exam
2) Reliable authority by witness/expert testimony/judicial notice
What is required for hearsay within hearsay to be admissible as substantive evidence?
1) Outer hearsay meets exception
2) Inner hearsay meets exception
What is the difference between prior statements offered as substantive evidence and for impeachment?
Substantive evidence
- Under oath
Impeachment
- NOT under oath
Which part of hearsay within hearsay is not admissible if one of them does not fall within any hearsay exceptions?
NONE
