8. Hearsay Flashcards
Definition:
Out-of-court statement offered to prove the truth of the matter asserted. (Generally inadmissible, subject to exceptions and exemptions).
“Statement:” oral or written assertion, or non-verbal conduct intended as assertion.
Non-human assertions are not statements (e.g. radar gun, dog bark, test).
Exemptions vs. exceptions
Exemptions: considered non-hearsay and thus admitted
Exceptions: deemed hearsay, but still admitted
Random:
Witnesses prior out-of-court statement can be hearsay.
Out-of-court statement are not hearsay if offered to prove anything other than the truth of the matter they assert.
Common non-hearsay out-of-court statements
♣ 1. Statements of independent legal significance
• statement contains legally operative words; not hearsay because offered to show that the statement was said, not whether it was true.
♣ 2. Statements offered to show their effect on the listener/reader
♣ 3. Statements offered to show speaker’s knowledge
♣ 4. Statements offered to show state of mind
• statements offered as circumstantial evidence of declarant’s state of mind are not hearsay.
• C.f. Compare with state of mind hearsay exception, which allows hearsay statements that reflect directly (not circumstantially) on declarant’s state of mind.
Non-hearsay exemptions:
- Admissions
♣ out of court statements by a party are admissible if offered against that party
• Judicial admissions: made in a pleading or testimony
• Adoptive admissions: acquiescence in another’s statement
o Silence can be an admission if:
♣ 1. Party heard, understood, and was capable of responding to a statement; and
♣ 2. A reasonable person in the party’s position would have responded.
• Vicarious admissions: admission by someone other than person against whom admission is offered; arises with:
o Agent/employee
o Authorized speaker
o Co-conspirator - Prior Inconsistent statement given under oath
- Prior consistent statement
♣ If offered to rebut a charge of fabrication, improper bias, or improper motive - Prior statement of identification after perception
List of Hearsay Exceptions
Declarant unavailability required
♣ 1. Former testimony exception
♣ 2. Statement against interest
♣ 3. Dying declaration
♣ 4. Statements of personal or family history
♣ 5. Statement offered against party procuring declarant’s unavailability
Rest of Hearsay exceptions: ♣ 1. Present state of mind ♣ 2. Excited utterance ♣ 3. Present sense impression ♣ 4. Physical condition (for medical diagnosis/treatment) ♣ 5. Past recollection recorded ♣ 6. Business record ♣ 7. Public records or reports ♣ 8. Judgement and prior convictions ♣ 9. Ancient documents ♣ 10. Documents affecting property interests ♣ 11. Learned treatises ♣ 12. Family records ♣ 13. Market reports
Former Testimony
Testimony given by a person in an earlier proceeding/deposition may be admissible.
Requirements:
♣ 1. Declarant is unavailable
♣ 2. Declarant’s prior testimony was given under oath; and
♣ 3. Party against whom testimony is now offered was either:
• A party in a previous action and had an opportunity to cross-examine declarant
• A predecessor in interest of a party in the previous action, in which there was a opportunity to cross-examine declarant and a similar motive for doing so
Statement Against Interest
- Declarant is currently unavailable
- Statement was contrary to declarant’s pecuniary, proprietary or penal interest when made; and
- A reasonable person would not have made the statement unless he believed it to be true
♣ Criminal case requirement: must also be corroborating circumstances indicating trustworthiness of statement.
Dying Declaration
- Declarant is currently unavailable
- Out-of-court statement made under belief of impending death
- Statement was made regarding cause or circumstances surrounding belief of impending death
** ONLY available in Civil and Homicide cases
Present Sense Impression
- Describes or explains an event or condition; and
- Is made contemporaneously with event or immediately thereafter
Hint: timing is key
Excited Utterance
- Relates to a startling or exciting event or condition; and
- Was made while the declarant was under the stress or excitement of the event
Hint: emotional state is key
Statement Concerning Present State of Mind or Condition
Statement of then-existing state of mind:
♣ Usually offered to show a declarant’s intent at the time the statement was made or as a circumstantial inference that declarant’s intent was likely carried out
• Distinguish from statements offered as circumstantial evidence of declarant’s state of mind, which are not hearsay
Statement of then-existing condition:
♣ Usually offered to establish some physical condition, symptom or sensation that declarant experienced at the time of the statement
Statement of Past Physical Condition for Diagnosis/Treatment
- Statement must be made to medical personnel
2. Statement must be pertinent to assisting in the diagnosis or treatment of a condition
Business Records
o 1. Record or transaction made or recorded by a business
o 2. Made in the regular course of business
o 3. Made at or near the time of the matter
o 4. Made by a employee with personal knowledge of the facts
o 5. Authenticated or certified in writing
o * Police reports: in criminal cases, police reports or other criminal investigative reports are inadmissible as business records
o * Court can exclude a qualifying business record if the source of info indicate lack of trustworthiness.
Public Records, Judgments and Prior Convictions
Public Records
♣ 1. Describes the activities of a public office or agency
♣ 2. Describes either:
• matters observed pursuant to a duty imposed by law or
• factual findings resulting from an investigation made pursuant to authority granted by law
♣ 3. Is made within the authors scope or duty
♣ 4. Is made at or near the time of the event
Judgements & Prior Convictions
Certified copies of judgments are admissible in both civil and criminal cases to prove any facts essential to the judgement
