Evidence - Hearsay

Question 1

Hearsay

Answer 1

Out-of-court statement being offered to prove the truth of the matter asserted

Question 2

Non-Assertive Conduct

Answer 2

Conduct that is not intended as as a statement (not intended to communicate) is NOT hearsay.

Ex. videotape showing D’s demeanor (drunk and stumbling)

Question 3

What is NOT HEARSAY

Answer 3

CELVIS

(1) Statement of capacity to see, hear, speak, etc.
(2) Effect on the listener (motive, intent, etc.)
(3) Legally operative facts (think contracts or promises)
(4) Verbal Acts (think torts and ks)
(5) Impeachment
(6) State of Mind

Question 4

Exemptions vs. Exceptions

Answer 4

Exemption > Exceptions

Question 5

Hearsay Exemptions

Answer 5

(1) Statement by a Party Opponent

2) Prior Statements (in civil and criminal cases

Question 6

Statement by a Party Opponent

Answer 6

(1) Statement by a named party
(2) Adoptive Admission
(3) Authorized Admission
(4) Employee Admission
(5) Co-Conspirator’s Statements

Question 7

Statement by a Party Opponent - Statement by a Named Party

Answer 7

A statement of a party offered against him by his opponent

(a) Can be a statement of fact or opinion
(b) Does not have to be against interest when made
(c) Personal knowledge not required; just required to be said BY the declarant and used AGAINST the declarant

Question 8

Statement by a Party Opponent - Adoptive Admission

Answer 8

Via words, conduct, or silence

Evidence sufficient to show that the party heard and understood the statement, and adopted it as their own

Question 9

Statement by a Party Opponent - Authorized Admission

Answer 9

Statement by a party’s agent or representative

agency can be express or implied

Question 10

Statement by a Party Opponent - Employee Admission

Answer 10

Statement of party’s employee offered against the party

Requirements: Statement must be made

(1) during the existence of the employment relationship; and
(2) Concern a matter within the scope of employment

Question 11

Statement by a Party Opponent - Co-Conspirator’s Statements

Answer 11

Co-conspirator’s statements can be used, regardless of whether or not a conspiracy was actually charged, against all other co-conspirators.

Requirements:

(1) Declarant was a member of the conspiracy
(2) Statement was made “in furtherance” of the conspiracy
(3) Statement was made “during the existence of” the conspiracy

Question 12

Hearsay Exemption - Prior Statements

Answer 12

All require:
(1) the declarant MUST be testifying at the trial/hearing and is being subjected to C-X re the statement.

(2) Statement must either be:
(a) prior inconsistent statement being offered for its truth
(b) prior consistent statement (after declarant has been impeached); OR
(c) Statement of prior identification

Question 13

Prior Inconsistent Statement

Answer 13

Needs to have been “sworn” at a trial, deposition, or other proceeding

Question 14

Hearsay Exceptions when declarant MUST be UNAVAILABLE

Answer 14

(1) Former testimony
(2) Statement made in Belief of Impending Death - dying declaration
(3) Statement against Interest

Question 15

Present Sense Impression

Answer 15

Statement describing/explaining an event or condition made while or immediately after perceiving it.

Characteristics/Requirements:

(1) Spontaneity
(2) Declarant does not need to be known or available
(3) An UNEXCITED utterance
(4) can be oral or in writing

Question 16

Excited Utterance

Answer 16

Statement relating to a startling event made while declarant was under the stress of the excited event or condition

Requirements:

(1) Startling event
(2) Personal knowledge required
(3) Statement while still stressed by the event – doesn’t need to be immediate, though

Question 17

Then-Existing Mental, Physical, or Emotional Condition

Answer 17

Statement of declarant’s then-existing physical, emotional, or mental condition –> relevant only to show declarant’s state of mind

Doesn’t need to be made to a medical person.

Look for prospective statements of intent (forward looking)

DOES NOT apply to past sensations or statements of memory/belief.

Question 18

Statements for Purposes of Medical Diagnosis or Treatment

Answer 18

Statement is made for the purposes of medical diagnosis or treatment describing medical history, past/present symptoms, pain/sensation, or the cause.

Can be made to any medical personnel or family member.

Statement must be useful for medical diagnosis and treatment

DOES NOT apply to statements admitting/assessing fault.

Question 19

Past Recollection Recorded

Answer 19

Must first attempt (and fail) to refresh the witness with a leading question or writing before this applies

Requirements:

(1) Writing is read into evidence
(2) Memorandum must have been made while the matter was fresh in the witness’ mind
(3) Authenticated by the witness (testifying that the writing accurately reflects the witness’s prior knowledge)

Adverse party then has the right to:

(1) Inspect the writing
(2) C-X with it
(3) Show it to the jury for comparison
(4) Introduce relevant portions into evidence

Question 20

Records of Regularly Conducted Activity

Answer 20

(1) A record/report of acts or events made at or near the time by a person with knowledge;
(2) if kept in the course of a regularly conducted business activity, and
(3) if it was the regular practice of that business to make such a record or report

Cannot be those that were prepared in anticipation of litigation.

Question 21

Public Records and Reports

Answer 21

Record/Statement by a public official is admissible IF it sets out a matter personally observed (which the person is under a legal duty to investigate and report)

NOTE: Law enforcement report is NOT admissible in this exception in a criminal case against the accused.

Question 22

Statements in Ancient Documents

Answer 22

Admissible if found in a place where these items are typically found (i.e., archives, library, possibly a shoebox)

Includes statements in a document that are in existence before January 1, 1998 and its authenticity is established

Question 23

Learned Treatises

Answer 23

Foundation authoritativeness established by: judicial notice; expert testimony; or stipulation

(a) Subject area: MASH (Medicine, Art, Science, History)

The treatise is only read to the jury - NOT physically given to the jury.

Question 24

When is a declarant considered “unavailable”

Answer 24

PRISM

P = Privilege 
R = Refusal to testify despite court order
I = Incapacity due to death or then-existing physical/mental illness
S = Even after subpoena (good-faith effort), witness is still unavailable
M = Memory is lacking by the witness

Question 25

Who has the burden of proving a witness is unavailable?

Answer 25

Proponent of the testimony

Question 26

Former Testimony

Answer 26

Admissible for the truth if:

(1) Declarant made the statement under oath
(2) Given by a witness in the same or [different but related] proceeding, or in a deposition; AND

• Former action must involve the same subject matter. Doesn’t have to be the same cause of action or the same plaintiff.
  (3) Party against whom evidence is being offered had the opportunity and similar motive to examine the witness and develop the testimony on direct, C-X, or redirect

Question 27

Dying Declaration

Answer 27

Made about the cause of death.

Admissible in any civil/criminal case if the charge is homicide.

Judge must determine that the declarant subjectively believed that death was imminent.

Declarant doesn’t need to have died from the incident but the declarant must be unavailable to testify.

Question 28

Statements Against Interest

Answer 28

Requirements:

(1) Witness had Personal knowledge
(2) Unavailable Witness
(3) Non-party (generally)
(4) Statement was against interest when it was made (i.e., against money, property, or penal interest).

*Usually will need corroboration as well for criminal cases.

Question 29

Confrontation Clause

Answer 29

If declarant is unavailable, testimonial hearsay statements will be inadmissible unless D is given an opportunity to C-X the declarant.

Testimonial = statement about past events that declarant reasonably expected would be used in a subsequent prosecution. (typically made to police or government employee or in a formal setting)

BUT the following hearsay is admissible:

(1) dying declarations
(2) child witness testifying via close circuit
(3) statement to aid police during an ongoing emergency
(4) chemical analysis report with notice and demand statute
(5) forfeiture by wrongdoing (D caused the declarant’s unavailability)

Question 30

Are photographs hearsay?

Answer 30

NO because a photograph is not a statement.

Statement = oral/written assertion or non-verbal conduct meant as communciative

Question 31

Analysis

Answer 31

Is it hearsay? For what purpose is the evidence being offered?