Distinguishing Hearsay from Non-Hearsay Flashcards
What are the five requirements of Hearsay?
(1) “Out-of-court”
(2) “Statement”
(3) “By qualifying declarant”
(4) “Offered of the matter asserted (TOMA)” – Not a TOMA exception
(5) “Not subject to FRE 801(d)”
What does “Out-of-court” mean?
(a) Literally outside court walls or
(b) In a court setting, but not in the same trial or hearing where the evidence is now offered
What does “Statement” mean?
(a) Not animals
(b) Not machines
What is the first TOMA exception?
(a) Use for impeachment
What is the second TOMA exception?
(b) Use as Verbal Act
What is the third TOMA exception?
(c) Use to show effect on listener or reader
What is the fourth TOMA exception?
(d) Use as verbal object/marker
What is the fifth TOMA exception?
(e) Use as circumstantial evidence of state of mind?
What is the sixth TOMA exception?
(f) Use as circumstantial evidence of knowledge, memory, or belief
What are the FRE 801(d)(1) exceptions, even if offered for TOMA?
(1) Prior inconsistent statements
(2) Prior consistent statements
(3) Prior statements of identification
What are the FRE 801(d)(2) exceptions, even if offered for TOMA?
(1) Individual admissions by party
(2) Adoptive admissions (including adoptions by silence)
(3) Admissions by authorized speaking agents
(4) Admissions by other agents acting within scope of employment
(5) Co-conspirator statement
What does it mean to use a statement for Impeachment and not TOMA?
When you use the statement to show inconsistency between present testimony and prior statement by the same witness (even if the prior statement wasn’t under oath).
Read: You’re not trying to say they were telling the truth previously, just pointing out the inconsistency.
What does it mean to use a statement for Verbal Act and not TOMA?
When you use a statement to prove an act (or part of an act) that is completed merely by the utterance, writing or possession of words, especially when such use of words is an element of the plaintiff’s claim or is an element of the offense in a criminal case.
Read: You’re not trying to say what they said is true; you’re just saying that they said the words (e.g., that they made an offer or an acceptance or slandered someone).
What does it mean to use a statement for Effect on Listener or Reader and not TOMA?
When you address the utterance or writing for the legally significant effect on the listener or reader, such as putting them on notice.
Example: You get an eviction notice. You might not actually have X days to vacate, but you can still mention that the notice was given to explain the effect it had on you.
What does it mean to use a statement for Circumstantial Evidence of State of Mind and not TOMA?
You might mention someone’s words to indirectly prove their state of mind (if the words directly prove the defendant’s state of mind, they are hearsay due to their directly assertive aspect, but they may still be admissible under FRE 803(3)).
Example: You can’t mention that John said he’s freaking out to assert that John was freaking out, but you could mention that he was going into hysterics about something to demonstrate that he was freaking out.
