8: Nonhearsay Flashcards
Legally operative facts
A statement offered to prove that the statement was made, regardless of its truth, is not hearsay.
For example, the following statements are nonhearsay:
(a) defendant’s statement that the plaintiff is a murderer in a slander action;
(b) the defendant’s threat in an extortion case; or
(c) the defendant’s derogatory comment about women in an employment discrimination case.
Effect on recipient
A statement offered to show the effect on the person who heard it is not hearsay.
E.g., in a negligence action, the defendant’s statement to the plaintiff that the sidewalk in front of the defendant’s house was icy: admissible to show that the plaintiff had notice of the danger but not to show that the sidewalk was actually icy.
Circumstantial state of mind
A statement offered as circumstantial evidence of the declarant’s mental state is not hearsay.
E.g., a testator’s statement, “I am the queen of England”: not admissible to show its truth admissible to prove that the testator is not of sound mind.
The circumstantial state of mind rule does not apply to statements with respect to past events.
Circumstantial identification
A statement that is used as circumstantial evidence linking a person with an event, place, or object is not being introduced for its truth and therefore is not hearsay.
E.g., a hotel receipt found on defendant’s person can be offered is admissible as circumstantial evidence that the defendant had been to the hotel.
Impeachment and rehabilitation
A statement offered solely to impeach or rehabilitate a witness is not being introduced for its truth and therefore is not hearsay.
Prior inconsistent statements
Prior inconsistent statements made under oath at a trial, hearing, or deposition are admissible as substantive evidence:
- But even if a prior inconsistent statement does not meet these criteria, they are admissible for non-substantive reasons.
- Should prior inconsistent statements be used for substantive purposes, however, the witness must:(i) testify at the present trial or hearing and
(ii) be subject to cross-examination concerning the statement.
The witness need not actually be cross-examined, so long as she is subject to cross-examination at the present trial.
Prior consistent statements
A prior consistent statement, whether made under oath or not, may be admissible:
(1) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying, but only if:
(a) it was made before the declarant had reason to fabricate; or
(b) It was made before the improper influence or motive arose;
(2) to rehabilitate the declarant’s credibility as a witness when attacked on another ground.
Prior consistent statements can be used as proof of the truth of the matter asserted—i.e., as substantive evidence.
Prior statements of identification
A previous out-of-court identification of a person (after perceiving that person) is admissible:
- But the declarant must testify as a witness and be subject to cross-examination—i.e., the declarant cannot have died or be otherwise unavailable.
- Even if the witness has no memory of the prior identification, it will be admissible if the witness is subject to cross examination.
Opposing party statements
As a general rule, if a statement introduced against a party is the party’s own prior statement, it is not hearsay.
It must, however, be offered by the opposing party.
Opposing party statements include:
(1) Judicial admissions;
(2) Adoptive admissions;
(3) Vicarious statements; and
(4) Co-conspirator statements.
Opposing party statements: vicarious statements of employees or agents
A statement made by a party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship—i.e., a vicarious admission.
It is not a requirement that the employee or agent be authorized to speak on behalf of the company.
Opposing party statements: interrogatories
Answers to interrogatories, which are signed and made under oath by a party to the litigation, are nonhearsay adoptive admissions.
Opposing party statements: adoptive admissions by silence
Silence in response to a statement is considered an adoptive admission if:
(i) the person was present and heard and understood the statement;
(ii) the person had the ability and opportunity to deny the statement; and
(iii) a reasonable person similarly situated would have denied the statement.
Opposing party statements: bootstrapping
In deciding whether there was a conspiracy or an agency relationship, the court cannot base its finding solely on the contents of the statement itself.
Pure “boot-strapping” is not permitted; there must be some other evidence to support the finding.
