31 - Hearsay Rule

Question 1

A. 801
B. 802
C. Dangers

Answer 1

A. Defines hearsay
B. Bars hearsay evidence
C. no cross-ex concerning percept, memory, narration, and sincerety

Question 2

Exceptions (3)

Answer 2

803 - 23 Exceptions that apply whether or not the declarant is available
804 - 5 exceptions that apply only is the declarant is unavialable
807 - “catch all” exception, some hearsay statements may be admitted on an ad hoc basis

Question 3

Exemptions/Excusions

Answer 3

Prior statements of Ws - 801(d)(1) - provides that certain 1 prior inconsistent statements 2 prior consistent statements, and 3. statements of identification are not hearsay

Statements (admissions) of a party-opponent - 801(d)(2) - CL and FR - admissions characterized as exceptions to the hearsay rule.
5 types of admissions - 
1. individual admissions
2. adoptive admissions
3. authorized admissions
4. agent admissions
5. coconspirator admissions

Question 4

Multiple hearsay (hearsay within hearsay) 805

Answer 4

• if each part of a double hearsay statement falls within an exception, statement is admissible

Question 5

Impeachment of hearsay declarants 806

Answer 5

• Hearsay declarant is a witness who, with a few modifications, may be impeached in the same manner as a trial witness

Question 6

Admissibility

Answer 6

• evidence that falls within one of the receptions or exemptions is not automatically admissible.
• statement must also satisfy the requirements of other evidentiary rules (ex. must be relevant and not excludable for some other reason like unfairly prejudicial, failing authentication, or best evidence rules)

Question 7

When W testifies that another person (declarant) told the W that he (declarant) saw the accused shoot he victim

Answer 7

No cross of the REAL W (declarant)
the credibility of Decla, not the W is critical to the assessment of the statement’s reliability - hearsay dangers but no cross

Question 8

Definitions
A. Declarant-focused
B. Assertion-focused

Answer 8

(perfect def is unattainable)
A. an out-of-court statement whose probative value depends on the credibility of the declarant

B. an out-of-court statement offered to prove the truth of the matter asserted - embodied in the FR
801(a) - defines a statement as a person’s oral or written asseriton of nonverbal conduct of a person, if the person intended it as an assertion
801(c) - a statement that “a party offers in evidence to prove the truth of ht matter asserted in the statement

In most cases, same result reached under either def, but not always - ex Declarant says “did you bring my gun?” Is there an implied assertion that Declar owns a gun?
A. underscores this point and might lead a court to exclude the statement
B. might not excude

Question 9

Declarant defined (801(b))

Answer 9

• the person who made the statement

- doesn’t apply to devices or tracking dogs

Question 10

“out-of-court” (extrajudicial) requirement

Answer 10

If eyewitness makes statement at time of the accident and later testifies at trial, prior statement is hearsay if offered for the truth

• to be admissible, must fall within an exception or exception.
• W can testify about what they saw, only the prior statement is hearsay

Question 11

Statements offered for their truth

Answer 11

• If relevance of an out-of-court statement is the fact that the statement was made, rather than the truth of the assertions contained therein, the statement is not hearsay.
• Ex. Son telephones you and says, “I am broke; send more money”
  
  • If I offered to prove that he’s broke, statement is hearsay
  • If same statement is offered to prove that the telephone system was operating on that day, it’s not hearsay (or to prove he’s alive, ability to speak English) if offered for any purpose other than truth - not hearsay

Can’t determine if hearsay until we know what statement is being offered to prove (relevancy) so 801 must be read with 401

subject to 403 (outweigh prejudice)

Question 12

Statements offered for their truth - To Show Effect on Listener -
To Prove Reasonableness (not hearsay)

Answer 12

A statement offered to show its effect on the state of mine of the person who heard it is not hearsay (belief, good faith, reasonableness)
- To prove reasonableness - ex. if accused claims self-defnese, her reasonable fear of the victim becomes an issue under the law of self defense - statements made to her regarding th evictim’s dangerous or violent character are relevant to show her subjective state of mind (fear) as well as the reasonableness of this fear. ex. suppose a friend told her that the V recelty stabbed 3 people - here the statement is not offered to show that ht eV actually stabbed 3 people, but rather to show that such information was communicated to the defendant and thus reasonably induced fear - STATEMENT WOULD BE RELEVANT (even if untrue) AND IS NOT HEARSAY

Question 13

Statements offered for their truth - To Show Effect on Listener -
To Prove Notice (not hearsay)

Answer 13

Statements offered to show that a person received notice of a fact, condition, or event are not offered for their truth - NO HEARSAY
ex. if a mechanic tells a driver that her tires are worn - if statement offered to show only that the driver had notice of this condition (not that the tires were worn) - not hearsay, if statement is relevant because it was made, not because it was true

Question 14

Statements offered for their truth - To Show Effect on Listener -
To Prove Good Faith or Bad Faith (not hearsay)

Answer 14

Ex. In an income tax evasion case, the D offered love letters of the deceased to establish her good faith belief that the things her gave her were gifts, rather than income - NOT HEARSAY b/c it doesn’t matter if content was true or not, the letters could have caused the D to believe in good faith that the things he gave her were intended as gifts

Question 15

Statements offered for their truth - To Show Effect on Listener -
To Explain Behavior (not hearsay)

Answer 15

Sometimes a statement is offered to explain someone’s conduct in response to the statement and not for the truth content
- ex. to explain why a search warrant was executed or why other police conduct occurred

Question 16

Statements offered for their truth - Verbal Acts (Legally Operative Words) - Not Hearsay

Answer 16

• not hearsay b/c not offered for the truth - uttering of certain words carries independent legal significance under the substantive law (words forming a contract, slander, threats) - so courts only care that these words were SAID not that they are TRUE.
  SAYING OF SOME WORDS ALTERS LEGAL STATUS BY CREATING RIGHTS OR LIABILITIES

Ex. -
A tells a 3rd party, “B is a liar.” If he sues for defamation, he will need to introduce the defamatory statment uttered by A - i.e. the verbal act. B is obviously not offering the statement for its truth content - that he is in fact a liar. Instead, he wants the jury to believe the opposite

Ex -
“I accept your offer” is a verbal act - law cares only that is was said, not that it was true

Question 17

Statements offered for their truth - Verbal Parts of Acts - Not Hearsay

Answer 17

• subcategory of verbal acts
• offered to show only that the statements were made and to explain an otherwise ambiguous act
• ex. words of donative intent accompanying the transfer of diamonds (“this is a gift”) or statements made whilst handing over bag of money (“this is a bribe”).
• conduct to be explained should be relevant, equivocal, and contemporaneous with the statements
• MUST HAVE INDEPENDENT LEGAL SIGNIFICANCE - most statements accompanying ambiguous conduct do not come with this category because they don’t have legal significance by creating rights or liabilities

Question 18

Statements offered for their truth - Prior Inconsistent Statments for Impeachment - Not Hearsay

Answer 18

• CL adopted only for impeachment
• Prior statement offered to show the inconsistency between the W’s trial testimony and pretrial statements, rather than to show the truth of the assertions contained in the pretrial statement

Ex. W testifies that the robber wore a red shirt but at the scene immediately following the robbery the same W told police that the shirt was blue. the prior statement (blue shirt) is not being offered to prove that the shirt was blue, but only that a statement about the color was made and is contradicting to the testimony

Question 19

Statements offered for their truth - To Circumstantially Prove Declarant’s State of Mind - Not Hearsay

Answer 19

• Mental state is material issue - if someone makes statement that manifests their state of mind, statement is relevant - most of these are hearsay but fall within the exception for presently existing state of mind
• other cases - statement shows Decar’s state of mind only circumstantial

Ex 1 wrongful death action, husband claims damages for loss of companionship due to wife’s death. D in rebuttal offers statements from the wife a week prior to her death “my husband is the cruelest man in the world” - this is not offered to prove he is creuest person in the wold, but to establish circumstantially how the wife felt about the husband. If she hated him, the damages for loss of company should be minimal

 - under assertion def - not hearsay
 - Under Declarant def - there would be an argument for classifying it as hearsay because her assertion may implicates her credibility as the declarant and what is she was joking

Ex 2 - D’s statement offered to establish insanity - “I am the emperor of Africa” - not to prove that he is or is not the Emperor but as evidence of the D’s insane delusions - NOT HEARSAY

Question 20

Statements offered for their truth - To Prove Personal Knowledge - Not Hearsay

Answer 20

Ex - accused charged with child molestation. Before the D’s house was identified as the place where the offense took place, the child made statements describing ht entrance to a house, room, and number of items in that room. SC - not hearsay because not offered for truth but as circumstantial evidence of her knowledge
- acceptable because there’s no other way child would know the details of the house and room whereas “John shot Bill” implies the declar knows or believes that john shot bill but this is just assuming knowledge

Question 21

“Statement” defined; “Implied Assertions” 801(a)

Answer 21

• an oral or written assertion of nonverbal conduct**, if the person intended it as an assertion (including tape/audio rec)

**Critical distinction between assertive and nonassertive conduct

Question 22

“Statement” defined; “Implied Assertions” 801(a)
A. Assertive Conduct
B. Non assertive Conduct
C. FR

Answer 22

A. Conduct used to communicate
ex. nodding head to answer someone, sign language, and pointing to someone if asked “who robbed you” - all hearsay

B. Conduct not intended to be an assertion (often labeled implied assertions - misleading)
Ex. Wright v Doe D’Tatham - competency of Marden to make a will. To prove testamentary capacity to do so, te beneficiary under the will (Wight) offered letters that had been written to Marsden by a cousin. If they stated “Marsen, you old competent testator” - that would be hearsay - but instead they discussed everyday affairs and did not say he was competent but indicated that the letter-writers (declarants) believed that he was mentally competent and from this Wright wanted court to infer that Marsden was competent
- House of Lords ruled inadmiss hearsay - FR REJECTED

Ex. person’s election to high office as evidence of that person’s sanity is not intended to make a statement about sanity
Ex. Person opening umbrella is evidence that is it raining

C. FR - this conduct doesn’t present risk of insincereity because these people aren’t intended to make an assertion

Question 23

“Statement” defined; “Implied Assertions” 801(a)
Non-Assertive Conduct
A. Non-verbal
B. Verbal

Answer 23

A. Voters electing someone into office (can be used as evidence of competency)
B. Placing a gambling bet over the phone (evidence of illegal gambling operation)
- If statement is offered to prove something not directly asserted but only implied - not hearsay under FR

Question 24

“Statement” defined; “Implied Assertions” 801(a)
Non-Assertive Conduct
C. Silence
D. Questions and Commands

Answer 24

C. Silence Ex. Silvere v NY Cent - passenger claimed to have suffered circulatory problems due to a four-hour train stop in Cleveland in winter. D railroad company proffered th etestimney of the porter that no other passengers had complained about the temps.
- issue is whether silence is an assertion (HEARSAY)
- FR - not hearsay b/c passenger, but remaining silent, does not intent to make an assertion
- (relevance issues - was porter available to receive complains and would any complaints be made to him or conductor or someone else?)
D. B/c a true question is by its nature incapable of being proved true or false and cannot be offered to “prove the truth of the matter asserted” it’s NOT HEARSAY. - Same with commands
- Implied assertion issue
- NOT HEARSAY ex - “did you find my umbrella?” implies that I have an umbrella
- HEARSAY - when stopped and arrested soon after robbery, one accomplice asked the police “how did you guys find us so fast?” - ex of question is asked in which an assertion of guilt and wonderment is only implied. Key here is it was directed at the police b/c unlikely he was interested in modern methods of law enforcement

Question 25

Constitutional Issues

Answer 25

• Due process may require admissibility of hearsay in limited
  circumstances
• Ex. Chambers v Mississippi - evidence was inadmissible because of hearsay, however, when constitutional rights directly affecting the ascertainment of guilt are implicated, hearsay may not be applied mechanistically to defeat eth ends of justice
  
  • Key point - court found the evidence reliable and basis for exclusion unpersuasive

Question 26

Procedural Issues

Answer 26

• Judge decides admissibility under 104(a)

- Objections must be timely or evidence may be considered by jury for whatever probative value

Question 27

Double Hearsay 805

Answer 27

• Hearsay within hearsay is PERMITTED if each part of the chain falls within an exception or exemption
• common in public and business records exceptions which encompass a double-hearsay component if both declarants are under a business duty or official duty - no need for 805
  
  • If entrant is under such a duty, statement is inadmissible in absence of another hearsay exception - need 805
    - ex. hospital record might contain an entry of the patient’s age based on info furnished by his wife. Record would qualify as regular entry except that the person who furnished the info was not actin gin the routine of the business. However - her statement independently qualifies as a statement of pedigree (if she is unavailable) or as a statement made for purposes of diagnosis or treatment - hence each link falls under sufficient assurances.
    - Ex 2 - dying declaration may incorporate a declaration aginst interest by another delcarant

Question 28

806
A. Calling Hearsay Declarants
B. Impeachment of Declarants

Answer 28

A. if party against whom a hearsay statement is admitted calls the declarant as a witness, the party may examine the declarant “as if on cross-examination” - provision proves automatic exception to 611(c) (generally prohibiting use of leading questions on direct)

B. Declarents may be impeached like regular Ws whist considering -

1. Prior convictions - Ex. if hearsay is admitted, declarant may be impeached with evidence of a conviction under 609 -> defendant brings out accused’s statment, through a defense W or on cross, the accused may be impeached even though they never testified.
   
   • 806 allows impeachment of defendant whose out-of-court statements were offered by the prosecution or a codefendant and who thus did nothing to put his credibility at isse (criticized)
2. Specific acts for untruthful char - 608(b) restricts impeachemt with specific instances of untruth to cross (no extrin ev) - however, if hearsay declarant doesn’t testify, application of the ban in extrinsic ev is preclude. 806 PERMITS IMPEACHMENT OF HEARSAY DECLAR W/EXTRIN EV IN THIS CONTEXT
3. Inconsistent statement - court may admit evidence of declar’s inconsistent statments regardless of when occurred or if there was opportunity for declar to explain or deny (why 613(b) doesn’t apply) INCONSISTNET STATEMENTS MADE SUBSEQUENT TO HEARSAY ARE ADMISSIBLE
4. Rehab - once declar impeached - rehab ev may be admiss

Question 29

“Res Gestae” (former exception to the hearsay rule for statements made spontaneously or as part of an act?)

Answer 29

• FR avoids the term b/c encompasses both evidence that is not hearsay and hearsay that falls within one of several exceptios

Question 30

Hearsay Definition

Answer 30

1. Do we have a “declarant”?
   
   • can only be human
2. Did the declarant make a “statement”?
   
   • a declaration/assertion of fact, event, or condition
   • What is the declarant intending to communicate
     (Not questions or command (?/!))
3. Is proponent using the statement to prove the “truth other than the matter asserted” by the statement

Question 31

Verbal Acts

Answer 31

• like a lease, driver’s license, passport