6 - Hearsay

Question 1

What is hearsay? What FRE? Is it admissible? What FRE?

Answer 1

Hearsay is an out-of·court statement offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay evidence generally is inadmissible, and may be admitted into evidence only if it falls within an enumerated exception. Fed. R. Evid. 802.

Question 2

What is a declarant? Specifically, what isn’t a declarant?

Answer 2

The declarant must be a person. Testimony as to a “statement” made by a machine or an animal is not hearsay. Examples of such nonhearsay “statements” include:

i) An automatically·generated time stamp on a fax;
ii) A printout of results of computerized telephone tracing equipment; and
iii) Raw data (such as blood-alcohol level) generated by a forensic lab’s diagnostic machine.

Question 3

What is an out-of-court statement? What FRE?

Answer 3

An out-of-court statement may be oral or written, or may be nonverbal conduct intended as an assertion. Fed. R. Evid. 801(a).

Question 4

What is assertive conduct?

Answer 4

An example of assertive conduct is a defendant nodding his head up and down to indicate a yes answer to a question.

Question 5

What is nonassertive conduct?

Answer 5

Nonassertive conduct is not hearsay and is admissible. An example of nonassertive conduct is a pilot’s act of flying an airplane offered as evidence of the plane’s safety.

Question 6

Are statements offerred to prove something other than the truth of the matter asserted hearsay/admissible?

Answer 6

Statements offered to prove something other than the truth of the matter asserted are not hearsay and are admissible.

Question 7

If a statement is offered to prove something other than the truth of the matter asserted hearsay/admissible? What kind of facts are these?

Answer 7

Legally operative facts: A statement offered to prove that the statement was made, regardless of its truth, is admissible as nonhearsay.

Example: In a slander action brought against Anne, Anne’s statement that Bill Is a murderer is admissible to prove that Anne actually made the statement~ but not to prove that Bill Is a murderer.

Question 8

Is a statement offered to show the effect on the person who heard it admissible/hearsay? What is this called?

Answer 8

Effect on recipient: A statement offered to show the effect on the person who heard it is admissible as nonhearsay.

Example: carla’s statement to Doug that the sidewalk in front of her house was Icy is admissible to show that Doug was on notice of the danger, but not to show that the sidewalk was actually icy.

Question 9

Is a statement offered as circumstantial evidence of the declarant’s mental state admissible/hearsay? What is this called?

Answer 9

State of mind: A statement offered as circumstantial evidence of the declarant’s mental state is admissible as nonhearsay.

Donna’s statement, “I am the queen of England,” is admissible not to show its truth, but to prove that declarant suffers from insane delusions.

Question 10

Is a statement offered to impeach a witness admissible/hearsay? What is this called?

Answer 10

Impeachment: A statement offered to impeach a witness is not being introduced for its truth and therefore is admissible as nonhearsay.

Question 11

What are the four types of statements offered to prove something other than the truth of the matter asserted?

Answer 11

1. Legally operative facts
2. Effect on recipient
3. State of Mind
4. Impeachment

Question 12

What is multiple hearsay? Is it admissible? What FRE?

Answer 12

Hearsay within hearsay (or double hearsay) is admissible as long as each level of hearsay falls within a hearsay exception. Fed. R. Evid. 805.

Example: Plaintiff sues Defendant for battery, daiming that Defendant struck Plaintiff’s kneecaps with a baseball bat. At trial, Plaintiff seeks to introduce as evidence his hospital file, which contains a note from Doctor stating that Plaintiff told or that his injury was caused by being struck with a baseball bat. Plaintiff’s statement to Doctor and the hospital file are both hearsay; they are out-of-court statemenls being offered to prove the truth of the matter -the cause of Plaintiff’s injury. However, because each level of hearsay falls within a hearsay exception (medical treatment and business records, the hospital record is admissible.

Question 13

What FRE lists the hearsay exceptions?

Answer 13

801(d)

Question 14

What are the two main types of hearsay exceptions?

Answer 14

1. Prior statements

2. Admission by Party-Opponent

Question 15

What are the three types of “prior statements”?

Answer 15

1. Prior inconsistent statements
2. Prior consistent statements
3. Prior statement of identification

Question 16

What are the three types of “Admission by Party-Opponent”?

Answer 16

1. Judicial Admission
2. Adoptive Admission
3. Vicarious Admission

Question 17

What are the three things to remember about “vicarious admission”?

Answer 17

1. Agent or employee
2. Co-conspirators
3. Proof

Question 18

What are “prior statements”? Must the witness who made the statement testify? What FRE?

Answer 18

The Federal Rules identify three types of prior statements that are admissible as nonhearsay. In all three cases, the witness who made the statement must testify at the present trial or hearing and be subject to cross~examination concerning the statement in order for it to be admissible. Fed. R. Evid. 801(d)(1).

Question 19

What are “prior inconsistent statements”? What if it’s not made under oath? What FRE? What should I note about “prior inconsistent statements” that do not follow this category?

Answer 19

A prior inconsistent statement made under oath at a trial, hearing, or deposition is admissible to impeach the declarant’s credibility and as substantive evidence. If the prior statement was not made under oath, it is admissible for impeachment purposes only. Fed. R. Evid. 801(d)(1)(A).

EXAM NOTE: Prior inconsistent statements that do not fall into this category of nonhearsay still may be used to impeach or rehabilitate a witness.

Question 20

What are “prior consistent statements”? What FRE? Something special?

Answer 20

A prior consistent statement, whether made under oath or not, is admissible to rebut an express or implied charge that the witness is lying or exaggerating, or has an improper influence or motive. However, such a statement is only admissible if it was made before the declarant had reason to fabricate. Fed. R. Evid. 801(d)(I)(B).

Question 21

What are “prior statements of identification”? What FRE? Something special?

Answer 21

A previous out-ot-court identification of a person after perceiving that person (e.g., lineup or photo array) is admissible as substantive evidence. Fed. R. Evid. 801(d)(1)(C).
EXAM NOTE: Beware of fact patterns involving prior out-of-court identifications by a witness who is not testifying at the current trial. This rule cannot apply, for instance, if the witness is dead or otherwise unavailable to testify.

Question 22

What is “Admission by Party-Opponent”? What FRE? What about past and present interests?

Answer 22

A prior out-ot-court statement by a party to the current litigation that is used against that party is not hearsay. The statement need not have been against the declarant’s interest at the time it was made; it must only be contrary to his present interest. Fed. R. Evid. 801(d)(2)(A).

Question 23

What is “judicial admission”? What FRE?

Answer 23

A guilty plea is admissible as an admission in a subsequent civil or criminal proceeding involving the same act, but a no-contest plea is inadmissible. Fed. R. Evid. 410.

Question 24

What is an “adoptive admission”? What FRE? What about silence? (3) What about post-arrest silence?

Answer 24

An adoptive admission is a statement of another person that a party expressly or Impliedly adopts as his own. Fed. R. Evid. 801(d)(2)(B).

Silence by a party In response to a statement made by another is considered an adoptive admission if:

i) The party was present and heard and understood the statement;
ii) The party had the ability and opportunity to deny the statement; and
iii) A reasonable person similarly situated would have denied the statement.

Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of statements made by another person (e.g., police officer). Doyle v. Ohio, 426 U.S. 610 (1976).

Question 25

What is “vicarious admission”?

Answer 25

Admissions made by one party may be imputed to another based on the
relationship between the parties.

Question 26

What about “agent or employee” in “vicarious admission”? What FRE? (2)

Answer 26

A statement made by an agent or employee is admissible if it was made during the course of employment and concerning a matter within the scope of employment. Fed. R. Evld. 801(d)(2)(D).

A statement about a subject that is made by a person who is authorized to make statements concerning that particular subject is admissible. Fed. R. Evid. 801(d)(2)(C).

Question 27

What about “co-conspirators” in “vicarious admission”? What FRE? What about after-arrest?

Answer 27

Although a statement made by one co-party is not admissible against another co-party based solely on their status as co-parties, a statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an admission against other co-conspirators. Fed. R. Evid. 801(d)(2)(E). A statement made by a co-conspirator after being arrested is not admissible, since it was not made during the conspiracy.

Question 28

What about “proof” in “vicarious admission”? What FRE?

Answer 28

The court cannot base its determination of the underlying facts (e.g., the existence of a conspiracy or agency) solely on the basis of the content of the statement itself. Fed. R. Evid. 801(d).