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)
