EV 5 - Hearsay basics, Hearsay exemptions/exclusions

Question 1

What is the basic idea of hearsay?

Answer 1

o Every witness should testify about what they themselves have perceived (see FRE 701).

o We don’t want a witness to testify about secondhand knowledge.

Question 2

What is the overall framework for hearsay?

Answer 2

o Step 1. Is the evidence relevant (FRE 401)?

o Step 2. Is the evidence hearsay (FRE 801)?

o Step 3. If the evidence is hearsay, is it admissible under one of the hearsay exceptions (FRE 803-807)?

o Step 4. Would the prejudicial effect of admitting the evidence substantially outweigh its probative value (FRE 403 Balancing Test)?

Question 3

What does “out-of-court” mean for purposes of hearsay?

Answer 3

Out-of-court means any time or place other than the present trial (even hearings for the same case that the present trial is adjudicating).

Question 4

What is the definition of Hearsay?

Answer 4

1. Out-of-Court
2. Statement
3. By a qualifying declarant
4. offered for the truth of the matter asserted

Question 5

What is a statement for purposes of hearsay?

Answer 5

Statements include:

o 1) verbal utterances;

o 2) writings; and

o 3) non-verbal conduct if intended as an assertion.

Question 6

Who is a qualifying declarant for purposes of hearsay?

Answer 6

Qualifying declarant means human beings (except for machines simply displaying or reproducing human utterances).

    o Examples of machines simply displaying or reproducing human utterances might be cell phones showing text messages or a tape recorder repeating what someone said.

Question 7

What does offered for the truth of the matter asserted mean for hearsay?

Answer 7

Offered for truth of the matter asserted means that the proponent of the evidence is trying to prove the truth of what the declarant said.

o Offering a statement for TOMA is like saying that Bob must have a new car because Al told you that Bob has a new car.

Question 8

What are non-toma purposes to bring up a statement by a qualifying declarant in court?

Answer 8

1. Impeachment
2. Verbal Act
3. Effect on Listener or Reader
4. Verbal Object/Verbal marker
5. Circumstantial evidence of state of mind
6. Circumstantial evidence of knowledge, memory, or belief

Question 9

In reference to non-toma purposes to bring up a statement by a qualifying declarant in court, what is impeachment?

Answer 9

Using a prior statement to show the inconsistency between it and the present testimony is not hearsay, because you’re not using the prior statement to assert its truthfulness; you’re using the prior statement to show the inconsistency.

Question 10

In reference to non-toma purposes to bring up a statement by a qualifying declarant in court, what is verbal act?

Answer 10

Using a prior statement to prove an act (or part of an act) that is completed merely by an utterance, writing, or possession of words is not hearsay, because you’re not using the prior statement to assert its truthfulness; you’re using the prior statement to show that the declarant did something.

       * This could be making an offer to purchase something or making a threat.

                       o You’re not trying to say that they could actually fulfill the terms of the offer or that they intended to follow through on the threat, just that they said the words.

                                	This is especially important to know because it’s hard to prove verbal elements of a claim if you can’t mention them!

Question 11

In reference to non-toma purposes to bring up a statement by a qualifying declarant in court, what is effect on listener or reader?

Answer 11

Using a prior statement to show that the utterance or writing of the words had some legally significant effect on the listener or reader is not hearsay because you’re not trying to show that the utterance or writings were true, just that they had an effect on the listener or reader.

• Using the example of a threat again, if the defendant is using self-defense as an affirmative defense, it’s important to mention that a threat had been made that put the defendant in apprehension of imminent physical harm.

Question 12

In reference to non-toma purposes to bring up a statement by a qualifying declarant in court, what is verbal object/verbal marker?

Answer 12

Using words as an identifier instead of relying on their assertive aspect is not hearsay.

• If someone says that they saw a company truck with Comcast on it, that’s not hearsay because you’re just using the word “Comcast” to identify that it’s a company truck owned by Comcast.

Question 13

In reference to non-toma purposes to bring up a statement by a qualifying declarant in court, what is circumstantial evidence of State of Mind?

Answer 13

Using words to indirectly prove a person’s state of mind is not hearsay (but if the words directly prove the declarant’s state of mind, they are hearsay due to their directly assertive aspect, but they may still be admissible under FRE 803(3)).

• If you say that someone said, “2 + 2 = 5” to illustrate that they are not very bright, that wouldn’t be hearsay because you’re not trying to claim that 2 + 2 actually equals 5; you’re trying to illustrate that they have poor arithmetic skills.

o However, if you say that someone said, “I have an IQ of 75” to illustrate that they are not very bright, that would be hearsay because you’re trying to assert their statement for the truth of the matter asserted.

Question 14

In reference to non-toma purposes to bring up a statement by a qualifying declarant in court, what is circumstantial evidence of knowledge, memory, or belief?

Answer 14

Suggesting the mere utterance or writing of the words indicates a person has very distinctive knowledge is not hearsay, because you’re not trying say that what they said is true, just that it’s indicative of them having certain knowledge, memory or belief.

• If you said that somebody said that the rule for diversity jurisdiction is 28 U.S.C. § 1332, this wouldn’t be hearsay if you’re trying to admit it to prove that this someone has taken 1L Civil Procedure or has some experience with drafting pleadings in federal court, but it would be hearsay if you’re trying to admit it to prove that the rule for diversity jurisdiction is 28 U.S.C. § 1332.

Question 15

what is hearsay?

Answer 15

Rules 801(a), (b), and (c) define hearsay as an out-of-court statement offered to prove the truth of the matter asserted. The statement may be any spoken, written, or nonverbal assertion made by a declarant prior to the current trial or hearing.

Question 16

True or False: the assertion sought to be proved must match the assertion of the statement exactly in order for the statement to be hearsay.

Answer 16

True

Question 17

In general (broadly speaking), what are the two ways for hearsay to be admissible?

Answer 17

1 - The first way is Rule 801(d), which creates exemptions that remove certain types of statements from the definition of hearsay. Even though these exemptions look like hearsay, they are redefined as non-hearsay and are thus exempt from the rule against hearsay.

2 - The second way for hearsay to be admitted is under a Rule 803, 804, or 807 exception. These exceptions can make certain types of hearsay statements admissible, even though they are still considered hearsay.

Question 17

What does rule 802 provide regarding the admissibility of Hearsay?

Answer 17

Under Rule 802, hearsay is always inadmissible unless it is made admissible by a federal statute, another rule in the Federal Rules of Evidence, or a Supreme Court rule

Question 18

Generally, what is rule 801(d)?

Answer 18

The first way for hearsay to be admissible is Rule 801(d), which creates exemptions that remove certain types of statements from the definition of hearsay. Even though these exemptions look like hearsay, they are redefined as non-hearsay and are thus exempt from the rule against hearsay.

Question 19

Generally, what are the exceptions under 803, 804, or 807?

Answer 19

The second way for hearsay to be admitted is under a Rule 803, 804, or 807 exception. These exceptions can make certain types of hearsay statements admissible, even though they are still considered hearsay.

Question 20

What is the 4-step analysis of suspected hearsay?

Answer 20

1. Is the evidence relevant?
2. Is the evidence hearsay?
   -out of court
   -statement
   -by qualifying declarant
   -offered for the truth of the matter asserted
   -some prior statements and admissions are excluded from the definition of hearsay under 801(d)
3. Is any hearsay exceptions available?
4. Should the evidence be barred for other reasons?

Question 20

What does rule 806 provide in regard to Declarant impeachment?

Answer 20

If hearsay evidence is admitted under an exemption or exception, the declarant may be impeached and have his or her credibility attacked, even if the declarant is not in court.

Under Rule 806, a declarant’s credibility may be attacked by any evidence that would be admissible for the purpose of impeachment if the declarant had testified as a witness in court.

Thus, evidence of the declarant’s bias, untruthful character, prior inconsistent statements, contradiction, or lack of capacity may be admitted. Remember that untruthful character may be shown by opinion or reputation, specific instances of untruthful conduct, and certain prior convictions.

Question 21

Generally, what are the 801(d) exemptions/exclusions from hearsay?

Answer 21

the Federal Rules of Evidence exempt certain types of out-of-court statements from the rule against hearsay, by redefining such statements as non-hearsay.

Question 22

Under Rule 801(d)(1), what are the three exemptions for prior statements made by a declarant who is also a witness?

Answer 22

Rule 801(d)(1) exempts a declarant-witness’s prior statement from the rule against hearsay in three specific situations:

(A), a prior inconsistent statement;
(B), a prior consistent statement; and
(C), a prior statement of identification.

Question 23

Who is a declarant witness?

Answer 23

A declarant-witness is simply a declarant who is also testifying as a witness in the present trial.

Question 24

True or False:

In order for Rule 801(d)(1) to apply, the declarant-witness must be subject to cross-examination about his or her prior statement.

Answer 24

True - In order for Rule 801(d)(1) to apply, the declarant-witness must be subject to cross-examination about his or her prior statement.

Question 25

Under the first 801(d)(1) exemption, prior inconsistent statement, what are the two requirements for a prior inconsistent statement under 801(d)(1)(A)?

Answer 25

under 801(d)(1)(A).
—First, the prior statement must be inconsistent with the declarant-witness’s testimony in the present trial.

—Second, the prior statement must have been given under the penalty of perjury – typically, it must have been made during a previous trial, hearing, or other proceeding requiring an oath or affirmation to testify truthfully.

Question 26

Under the second 801(d)(1) exemption, a prior consistent statement, what are the two requirements for a prior consistent statement under 801(d)(1)(B)?

Answer 26

under 801(d)(1)(B)

—First, the prior statement must be consistent with the declarant-witness’s testimony in the present trial.

—Second, the prior statement must be offered in the present trial to rebut an express or implied charge of recent fabrication or recent improper influence or motive regarding the declarant.

Question 27

Under the third 801(d)(1) exemption, a prior statement of identification, what are the requirements for a prior statement of identification, under 801(d)(1)(C)?

Answer 27

801(d)(1)(C) requires that the declarant-witness’s prior statement must have identified someone that the declarant perceived at an earlier time.

Question 28

Under Rule 801(d)(2), which creates five exemptions for admissions made by an opposing party, or party-opponent, what are the 5 specific situations?

Answer 28

(A), an express admission;
(B), an implied or adoptive admission;
(C), an authorized admission;
(D), an agent’s admission; and
(E), a coconspirator’s admission.

Question 29

What is required for 801(d)(2) (exempts a statement of admission by opposing/party-opponent) to apply?

Answer 29

For 801(d)(2) to apply, the statement must be offered against the party-opponent who made the statement.

Question 30

True or False:

An admission does not necessarily have to be a statement against interest; any statement at all made by a party-opponent may qualify for an 801(d)(2) exemption.

Answer 30

True

Question 31

What do the first two 801(d)(2) exemptions (express admission, implied or adoptive admission) involve?

Answer 31

The first two exemptions involve an admission made personally by the party-opponent.

Question 32

Under the first exemption - 801(d)(2)(A) - express admission, what is required?

Answer 32

The first exemption, an express admission, requires under 801(d)(2)(A) that the party-opponent made the statement in an individual or representative capacity.

Question 32

Under the second exemption - 801(d)(2)(B) - implied or adoptive admission, what is required?

Answer 32

The second exemption, an implied or adoptive admission, requires under 801(d)(2)(B) that the party-opponent adopted or believed the statement as true – this means that the party-opponent must have either:
—agreed with the statement,
—-adopted the statement as his or her own, or
—remained silent when, generally, a person who disagreed with the statement would have protested it as untrue under the circumstances.

Question 33

What do the last three 801(d)(2) exemptions - - (C)an authorized admission; (D), an agent’s admission; and (E), a coconspirator’s admission.) - - involve?

Answer 33

The last three 801(d)(2) exemptions involve an admission made by a declarant who is speaking for the party-opponent.

Question 34

Under the third exemption - 801(d)(2)(C) - an authorized admission - what is required?

Answer 34

An authorized admission, requires under 801(d)(2)(C) that the statement be made by a declarant authorized to speak for the party-opponent about the subject.

Question 35

Under the fourth exemption - 801(d)(2)(D) - an agents admission - what is required?

Answer 35

An agent’s admission, requires under 801(d)(2)(D) that the statement be made by the party-opponent’s agent or employee regarding a matter within the scope of the relationship between the party-opponent and the agent or employee at the time.

Question 36

Under the fifth exemption - 801(d)(2)(E) - a coconspirator’s admission - what is required?

Answer 36

A coconspirator’s admission, requires under 801(d)(2)(E) that the statement be made by the party-opponent’s coconspirator during and in furtherance of the conspiracy.

Question 37

May statements admitted under the last three 801(d)(2) exemptions:

(C), an authorized admission;
(D), an agent’s admission; and
(E), a coconspirator’s admission

be used to prove the existence of the relationship between the party-opponent and the declarant?

Answer 37

Statements admitted under these three exemptions may not be used to prove the existence of the relationship between the party-opponent and the declarant; that relationship must be proved separately.

(C), an authorized admission;
(D), an agent’s admission; and
(E), a coconspirator’s admission

Question 38

True or False:

A prior inconsistent statement may be exempt under 801(d)(1)(A), if it is inconsistent with the declarant-witness’s present testimony and was made under the penalty of perjury.

Answer 38

True

Question 39

True or False:

A prior consistent statement may be exempt under 801(d)(1)(B), if it is consistent with the declarant-witness’s present testimony and is offered to rebut a charge of recent fabrication or recent improper influence or motive.

Answer 39

True

Question 40

True or False:

A prior statement of identification may be exempt under 801(d)(1)(C), if it identified a person perceived earlier by the declarant-witness.

Answer 40

True

Question 41

The first three 801(d)(1) exemptions:

(A), a prior inconsistent statement;
(B), a prior consistent statement; and
(C), a prior statement of identification.

may only apply if:

Answer 41

these exemptions may only apply if the declarant-witness is subject to cross-examination regarding the prior statement.

Question 42

An express admission may be exempt under 801(d)(2)(A) if:

Answer 42

it was personally made by the party-opponent as an individual.

Question 42

Generally, what does rule 801(d)(2) provide?

Answer 42

exempts five types of statements made by a party-opponent, either personally or through another person.

Question 43

An implied or adoptive admission may be exempt under 801(d)(2)(B), if:

Answer 43

the party-opponent agreed with, adopted, or failed to protest a statement made by another person.

Question 44

An agent’s admission may be exempt under 801(d)(2)(D) if:

Answer 44

it was made by an agent or employee of the party-opponent and was about a matter within the scope of their existing relationship at the time.

Question 45

An authorized admission may be exempt under 801(d)(2)(C) if:

Answer 45

it was made by a declarant authorized to speak for the party-opponent about the subject.

Question 46

A coconspirator’s admission may be exempt under 801(d)(2)(E) if:

Answer 46

it was made by the party-opponent’s coconspirator during and in furtherance of the conspiracy.

Question 49

What qualifies as a statement?

Answer 49

Under the Federal Rules, a statement is an assertion—oral, written, or nonverbal—by which the declarant intends to communicate.

Question 50

When can nonverbal conduct be a statement?

Answer 50

nonverbal conduct is hearsay if it was intended as an assertion and is being offered to prove the truth of the matter asserted.

Question 51

When is a Statement being used for the truth of the matter asserted?

Answer 51

A statement is being used for the truth of the matter asserted when the finder-of-fact is being asked to believe that the statement itself is actually true.

Focus on the statement itself, not on the broader theory of the case or on the larger principle that the piece of evidence would help prove.

Question 52

What are out-of-court statements that do not fit the Hearsay definition? (non-toma)

Answer 52

The common law developed classic categories that assist in identifying statements that look like hearsay but do not fit the definition. These categories of out-of-court statements that are not being used for the truth of the matter asserted are still useful today.

VICE

V - Verbal Acts

I - Impeachment

C - Circumstantial evidence of the state of mind of the declarant

E - Effect on the listener

Question 53

What are “verbal acts” for purposes of out-of-court statements that do not fit the definition of hearsay? (non-toma)

Answer 53

Verbal acts are actions with words. They fall into 2 categories:

1 - The words themselves do not matter, just the fact of speech. For instance, a mother knocks on a teenager’s door at 3:00 p.m. on a Saturday afternoon and asks, “Are you alive?” The surly answer, “No, I’m dead,” conveys just as much information regarding the vitality of the child as the more polite, “Yes, thanks, Mom. I’m OK. I’m just doing my Advanced Placement U.S. History homework.” The fact of speech, not its content, conveys that the teenager is alive.

2 - Legally operative language whereby the words themselves have legal consequences. In essence, the speaker is acting with words, creating a legal right, duty, or status. This second category includes verbal parts of acts, or speech that is necessary to explain the legal consequences of the action.

Question 54

what are the 2 categories of verbal acts for purposes of out-of-court statements that do no fit the definition of hearsay? (non-toma)

Answer 54

Verbal acts are actions with words. They fall into 2 categories:

1 - The words themselves do not matter, just the fact of speech. For instance, a mother knocks on a teenager’s door at 3:00 p.m. on a Saturday afternoon and asks, “Are you alive?” The surly answer, “No, I’m dead,” conveys just as much information regarding the vitality of the child as the more polite, “Yes, thanks, Mom. I’m OK. I’m just doing my Advanced Placement U.S. History homework.” The fact of speech, not its content, conveys that the teenager is alive.

2 - Legally operative language whereby the words themselves have legal consequences. In essence, the speaker is acting with words, creating a legal right, duty, or status. This second category includes verbal parts of acts, or speech that is necessary to explain the legal consequences of the action.

Question 55

What is “impeachment” for purposes of out-of-court statements that do not fit the definition of hearsay? (non-toma)

Answer 55

Sometimes an out-of-court statement is offered not for its truth but merely to impeach a witness on the stand with her own prior statement.

The out-of-court statement is not being offered to show that the out-of-court statement was true, but just to show that it was made and that the witness has been inconsistent and arguably unreliable.

Question 56

What is “Circumstantial Evidence of State of Mind of the Declarant” for purposes of out-of-court statements that do not fit the definition of hearsay? (non-toma)

Answer 56

Within this category are utterances that are not hearsay because they can be used to show the declarant’s state of mind circumstantially, without the finder-of-fact needing to accept the declarant’s assertion in the statement as true.

Question 57

What is “Effect on the Listener” for purposes of out-of-court statements that do not fit the definition of hearsay? (non-toma)

Answer 57

If a statement is not offered for the truth of what it asserts, but to show its effect upon the hearer or reader of the statement, then it is not hearsay.

In other words, the out-of-court statement is being offered not to prove that the assertion is actually true but to demonstrate the effect on the person who heard it, such as displaying the listener’s knowledge or elucidating the listener’s intent.

Be careful: you must be able to articulate a theory of relevance concerning why anyone would care about the effect on the listener.

Question 58

True or False:

The Rule 801(d)(1) exemption applies to some out-of-court statements by a witness and only if the declarant is currently available as a witness and is subject to cross-examination.

If the declarant is unavailable, or is not subject to cross-examination, Rule 801(d)(1) does not apply.

Answer 58

True.

Question 59

Finish the rule:

The Rule 801(d)(1) exemption applies to some out-of-court statements by a witness and only if the declarant is _________ _________ as a witness and is subject to _____-___________. If the declarant is unavailable, or is not subject to cross-examination, Rule 801(d)(1) does not apply.

Answer 59

The Rule 801(d)(1) exemption applies to some out-of-court statements by a witness and only if the declarant is currently available as a witness and is subject to cross-examination. If the declarant is unavailable, or is not subject to cross-examination, Rule 801(d)(1) does not apply.

Question 60

Rule 801(d)(1)(A) limits the type of a witness’s prior out-of-court statement that can be used for its truth.

It designates the prior out-of-court statement by a witness as “not hearsay” (and hence able to be used for its truth) only if:

Answer 60

—The declarant testifies at the current trial or hearing;

—The declarant is subject to cross-examination concerning the prior statement at the current trial or hearing;

—The prior out-of-court statement is inconsistent with the declarant’s current testimony;

—The prior out-of-court statement was given under oath subject to the penalty of perjury; and

—The out-of-court prior statement was made at a trial, hearing, or other proceeding, or in a deposition.

Question 60

What if live witnesses testifying under oath contradict their prior out-of-court statements?

Answer 60

There are two separate bases for receiving the prior inconsistent statement of a witness: (1) Rule 801(d)(1)(A) and (2) common-law impeachment.

Common-law impeachment can only be offered to contradict the witness and show that the witness is unreliable; it cannot be used to prove the truth of the out-of-court statement.

If the prior inconsistent statement falls under Rule 801(d)(1)(A), however, then it is admissible both as impeachment and as substantive evidence; that is to say, the finder-of-fact may choose to believe and rely on the witness’s out-of-court statement instead of the in-court testimony.

Question 61

Prior consistent statements by an available witness are admissible as both common-law rehabilitation and substantive evidence.

Under Fed. R. Evid. 801(d)(1)(B)(i), the prior consistent statement made by the witness can be admitted “to rebut an _______ or _______ charge that the declarant recently fabricated it or acted from improper influence or motive.”

Questions of timing arise regarding rebutting charges of improper influence or motive. A prior consistent statement is not useful to rebut a claim of fabrication, undue influence, or improper motive if the statement was made _____ the alleged motive or influence arose.

Answer 61

Prior consistent statements by an available witness are admissible as both common-law rehabilitation and substantive evidence.

Under Fed. R. Evid. 801(d)(1)(B)(i), the prior consistent statement made by the witness can be admitted “to rebut an EXPRESS or IMPLIED charge that the declarant recently fabricated it or acted from improper influence or motive.” Questions of timing arise regarding rebutting charges of improper influence or motive. A prior consistent statement is not useful to rebut a claim of fabrication, undue influence, or improper motive if the statement was made AFTER the alleged motive or influence arose.

Question 62

True or False:

Prior consistent statements by an available witness are admissible as both common-law rehabilitation and substantive evidence.

Answer 62

True.

Prior consistent statements by an available witness are admissible as both common-law rehabilitation and substantive evidence.

Under Fed. R. Evid. 801(d)(1)(B)(i), the prior consistent statement made by the witness can be admitted “to rebut an express or implied charge that the declarant recently fabricated it or acted from improper influence or motive.” Questions of timing arise regarding rebutting charges of improper influence or motive. A prior consistent statement is not useful to rebut a claim of fabrication, undue influence, or improper motive if the statement was made after the alleged motive or influence arose.

Question 63

What was the holding from Tome v. US in regard to the timing of prior consistent statements?

Answer 63

The Supreme Court addressed this timing issue in Tome v. United States, 513 U.S. 150 (1995), holding that prior consistent statements rebutting charges of improper influence or motive are only admissible under Rule 801(d)(1)(B) if they were made before the alleged recent fabrication or improper influence or motive arose.

The rule was recently revised to include other rehabilitative uses, such as to explain a prior inconsistency or to rebut a charge of faulty recollection. Fed. R. Evid. 801(d)(1)(B)(ii). This revision has no effect on the timing requirement.

Question 64

Under 801(d)(1)(C) prior identification statements are admissible only if:

Answer 64

the declarant testifies in court and is subject to cross-examination concerning the prior identification.

Question 64

Under Rule 801(d)(1)(C), A witness’s prior statement of ______________ is “not hearsay” and is admissible.

Answer 64

A witness’s prior statement of INDENTIFICATION is “not hearsay” and is admissible

Question 65

Finish the rule:

Under 801(d)(1)(C) - A witness’s out-of-court identification can be admitted at trial either through:

A -

B -

But third-party testimony cannot be:

Answer 65

A - that witness’s own testimony or

B - through the testimony of another witness, such as a police officer, who observed the out-of-court identification.

But third-party testimony cannot be the only evidence of the identification; the declarant must also testify, even if recanting.

Question 66

left off at statements of a party-opp