6. Hearsay Flashcards
Hearsay
The out of court statement of a person, offered to prove the truth of the matter asserted in the statement
Principal Categories of Non-Hearsay Purposes
- Verbal Act (Legally Operative Words). A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken.
- To Show Effect on Person Who Heard or Read the Statement.
- Circumstantial Evidence of Speaker’s State of Mind
3 Witness-Statement Exclusions from Hearsay (called “exclusions” or “non-hearsay”).
Witness is currently subject to cross-examination AND:
- Witness’s prior statement of identification of a person
(In New York, called a hearsay “exception.”); or - Witness’s prior inconsistent statement if oral, under oath and made during formal testimonial hearing.
(But in New York, admissible only to impeach.); or - 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.)
Party Admissions (Statement of an opposing party)
Any statement made by the opposing party is admissible for its truth if it is offered against the opposing party.
Adoptive Admission
If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement.
Adoption by silence
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.
Vicarious Party Admission
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.
NY Distinction on Vicarious Party Admission
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).
Co-conspirator’s Statement
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.
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:
(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)
Are business records testimonial?
Business records are not testimonial (e.g., bank or phone company records).
Are Sworn Affidavits testimonial?
Sworn Affidavits are testimonial.
Are forensic laboratory reports testimonial?
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.
Is a DNA report testimonial?
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.
“Forfeiture Hearsay Exception” (Declarant Unavailable Due to Defendant’s Wrongdoing)
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
Burden of Proof for “Forfeiture Hearsay Exception”
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
Former Testimony
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.
Grounds of Unavailability:
(1) Privilege
(2) Absence from the jurisdiction
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify
New York has two additional grounds of “unavailability” for the former testimony hearsay exception in civil cases only:
(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).
Statement Against Interest
An unavailable declarant’s statement against his or her:
- Pecuniary interest
- Proprietary interest
- Penal interest
Qualification of statements against interest in criminal cases
Statement against penal interest must be supported by circumstances showing trustworthiness of statement (i.e., corroboration).
Dying Declaration
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.
What type of case is a dying declaration allowed for?
Criminal cases: Homicide only
Civil cases: Any civil action
NEW YORK: Criminal Homicide only, meaning that death is the only relevant form of unavailability.
Excited Utterance
Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.