6. Hearsay

Question 1

Hearsay

Answer 1

The out of court statement of a person, offered to prove the truth of the matter asserted in the statement

Question 2

Principal Categories of Non-Hearsay Purposes

Answer 2

1. Verbal Act (Legally Operative Words). A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken.
2. To Show Effect on Person Who Heard or Read the Statement.
3. Circumstantial Evidence of Speaker’s State of Mind

Question 3

3 Witness-Statement Exclusions from Hearsay (called “exclusions” or “non-hearsay”).

Answer 3

Witness is currently subject to cross-examination AND:

1. Witness’s prior statement of identification of a person
   (In New York, called a hearsay “exception.”); or
2. Witness’s prior inconsistent statement if oral, under oath and made during formal testimonial hearing.
   (But in New York, admissible only to impeach.); or
3. Witness’s prior consistent statement to rebut charge of recent fabrication, contention of inconsistency or sensory deficiency.
   (But in New York, admissible only to rehabilitate credibility.)

Question 4

Party Admissions (Statement of an opposing party)

Answer 4

Any statement made by the opposing party is admissible for its truth if it is offered against the opposing party.

Question 5

Adoptive Admission

Answer 5

If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement.

Question 6

Adoption by silence

Answer 6

Adoption by silence occurs when a party who hears another person’s statement remains silent under circumstances in which a reasonable person would protest if the statement were false.

Question 7

Vicarious Party Admission

Answer 7

Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.

Question 8

NY Distinction on Vicarious Party Admission

Answer 8

The statement of an agent/employee is admissible as a vicarious party admission only if the principal/employer gave the agent/employee the authority to speak about the matter (E.g., explicit speaking authority (“Talk to X about this”), or implicit speaking authority (employee is upper-level manager).

Question 9

Co-conspirator’s Statement

Answer 9

The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made

(1) during and
(2) in furtherance of the conspiracy.

Question 10

In the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant (even if it falls within a hearsay exception) if:

Answer 10

(1) the statement is testimonial,
(2) the declarant is unavailable, and

(3) the defendant has had no opportunity for cross-examination
(cross-examination requirement may be satisfied either before or at trial)

Question 11

Are business records testimonial?

Answer 11

Business records are not testimonial (e.g., bank or phone company records).

Question 12

Are Sworn Affidavits testimonial?

Answer 12

Sworn Affidavits are testimonial.

Question 13

Are forensic laboratory reports testimonial?

Answer 13

A forensic laboratory report is testimonial if its primary purpose is to accuse a targeted individual of criminal conduct.

Examples: (1) Analysis of drugs seized from a particular suspect to ascertain if the drugs are cocaine, etc. (2) Analysis of the blood of a suspected DWI driver to ascertain his blood alcohol content.

Question 14

Is a DNA report testimonial?

Answer 14

A DNA report is not testimonial if it analyzes a sample of bodily fluid collected from a crime scene for the purpose of developing a DNA profile if no particular person is suspected at the time of the analysis.

Question 15

“Forfeiture Hearsay Exception” (Declarant Unavailable Due to Defendant’s Wrongdoing)

Answer 15

Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds:

(1) that D’s conduct was specifically designed to prevent the witness from testifying, or
(2) that defendant’s wrongdoing forfeits the Sixth Amendment confrontation objection

Question 16

Burden of Proof for “Forfeiture Hearsay Exception”

Answer 16

Defendant’s involvement in making the declarant unavailable to testify must be proven to the court’s satisfaction as follows:

Federal: Preponderance of the evidence

New York: Clear and convincing evidence

Question 17

Former Testimony

Answer 17

The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same.

Question 18

Grounds of Unavailability:

Answer 18

(1) Privilege
(2) Absence from the jurisdiction
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify

Question 19

New York has two additional grounds of “unavailability” for the former testimony hearsay exception in civil cases only:

Answer 19

(1) Declarant is located 100 miles or more from the courthouse, or
(2) Declarant is a physician (public policy prefers that doctors continue their work rather than testify again).

Question 20

Statement Against Interest

Answer 20

An unavailable declarant’s statement against his or her:

1. Pecuniary interest
2. Proprietary interest
3. Penal interest

Question 21

Qualification of statements against interest in criminal cases

Answer 21

Statement against penal interest must be supported by circumstances showing trustworthiness of statement (i.e., corroboration).

Question 22

Dying Declaration

Answer 22

Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.

Question 23

What type of case is a dying declaration allowed for?

Answer 23

Criminal cases: Homicide only

Civil cases: Any civil action

NEW YORK: Criminal Homicide only, meaning that death is the only relevant form of unavailability.

Question 24

Excited Utterance

Answer 24

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.

Question 25

Present Sense Impression

Answer 25

Description of an event made while the event is occurring or immediately thereafter.

Question 26

NY Distinction on Present Sense Impressions

Answer 26

There must be corroborating evidence of the happening of the event described by the declarant.

Question 27

Present State of Mind

Answer 27

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions.

Question 28

Declaration of Intent

Answer 28

Statement of declarant’s intent to do something in the future, including the intent to engage in conduct with another person.

Question 29

NY Distinction on Declaration of Intent

Answer 29

If the statement of future intent is offered to prove the joint participation of another person, New York requires:

(1) Corroborating evidence of a relationship between the declarant and the other person, and
(2) That the declarant is unavailable.

Question 30

Present Physical Condition

Answer 30

Statement made to anyone about declarant’s current physical condition

Question 31

NY Distinction on Present Physical Condition

Answer 31

If a statement of present physical condition is made to a layperson, rather than a medical professional, the declarant must be unavailable.

Question 32

Statement made for the purpose of obtaining medical treatment or diagnosis

Answer 32

Statement made to anyone (usually to medical personnel) for the purpose of obtaining medical treatment or diagnosis (including diagnosis for expert testimony) if it concerns the declarant’s

1) Present symptoms or
2) Past symptoms or
3) General cause of the symptoms, but not including statements describing the details of liability or the identity of a tortfeasor, unless it is the identity of the abuser in a domestic abuse or child abuse case.

Question 33

Business Records

Answer 33

(1) Records of a business of any type
(2) Made in the regular course of business (the information recorded is germane to the business)
(3) The business routinely keeps such records
(4) Made at or about the time of the event recorded

(5) Contents consist of—
information observed by employees of the business (including medical treatment, and expert diagnoses and opinions on general causation of a patient’s injury contained in medical and hospital records), or
a statement that falls within an independent hearsay exception

Question 34

Public Records

Answer 34

Records of a public office or agency setting forth:

(1) the activities of the office or agency (e.g., payroll records); or
(2) matters observed pursuant to a duty imposed by law (e.g., Weather Bureau records of temperature); or
(3) findings of fact or opinion resulting from an investigation authorized by law (e.g., OSHA inspection report on safety conditions of factory).

Question 35

Exclusion from public records exception:

Answer 35

Police reports prepared for pretrial purposes are not admissible against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduce such reports against the defendant under the alternative theory of business records.

Question 36

Hearsay Within Hearsay

Answer 36

If a hearsay statement is included within another hearsay statement, the evidence is inadmissible unless each statement falls within a hearsay exception.

Question 37

Impeachment of Hearsay Declarants

Answer 37

Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence. If the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.