Evidence Hearsay Flashcards
Steps for Hearsay
1) is it hearsay?
1a) Is it out of court 1b) what is the purpose of the statement.
2) Does an exlcusion of exception apply?
3) If exception applies does confrontation clause except it?
4) Is excluded under a different rule?
Step 1) Is It Hearsay?
What is hearsay
Statement not made while testifying at the current trial or hearing that is offered in evidence to prove the truth of the matter asserted.
Statement not offered for truth
Statement not offered for truth can be admitted but will be given a limiting instruction.
For example, “i’m alive” of V who died in car crash. This is not offered for the truth of whether she is alive or not. All that is needed to prove is whether she said it or not and the W is here and can be crossed.
Recipe for meth found in room, not offered for truth but more for character of room.
Other Non-Hearsay
“Rapiest” in confession helps show not guilty. (must spell like that several times).
Machine generated is not hearsay.
Animals dont make statements (even parrots).
Verbal acts- When words create legally binding positions then testimony is not offered to show they are true, but that they were actually spoken.
Introducing statements to show context was false (same alibi but that one is false) is admissible.
Effect on Listener (notice, knowledge, motive, good faith, probable cause)
Statement offered to show the probable effect that it had on the listener.
“your wife cheated” offered to show why he killed wife not for truth that she cheated.
Notice- if offered to show that the D had notice of the issue then must go through 403 analysis. For example, “sponge count off” relating to surgeon negligence case. Not offered for truth but for notice to surgeon. Weigh through 403.
Statement to police to show why they arrested person is usually not admissible because of 403 issues not hearsay. Unless context is needed because the police story seems weird without context.
Implied Assertions
Assertions are not allowed IF statement intends to communicate the assertion and is offered for its truth. (would a reasonable person making the assertion have in mind to include what is asserted). For example, he is as strong as an ox is intended to convey that he is strong so it is inadmissible.
Caller says “ i want to place a bet” implication is that the house is betting parlor. But that is not intended to be implied, he only intends to make a bet.
Actions that imply things are not hearsay becuase usually not meant to imply stuff. Getting on a boat is not meant to imply that the boat is safe, rather it is to get on the boat. It would be hearsay if its a corporation TRYING to show something is safe by doing the act.
Passive conduct is not hearsay usually.
Step 2- Does an exclusion apply?
If an exception or exclusion apply then the evidence will be admissible even if it fits the definition of hearsay.
801(d)(1)- Prior Statements
Prior statements are potentially hearsay because cross examination would be weaker since statements are old.
801(d)1(a)- Inconsistent statements
Under oath at formal proceeding where verbatim record is kept. Police interrogation does not work.
If not made at formal proceeding then can only be used to impeach and cannot only call witness to impeach them.
If only for impeachment then cannot be used in any way for truth (like in Directed Verdict).
801(d)1(b)- Consistent statements
Admissible to rehab the cred of a witness. Can never be introduced on direct, must be on cross. Just because she repeated statement doesnt make it true.
Requirements for truth- 1) current testimony is consistent 2) witness must be attacked (motive or lying) 3) witness is on stand subject to cross 4) statements predate the accused current statements.
To rebut motive the statement must be made before motive existed.
801(d)1(C)- Prior Identifications
Declarant must testify and be subject to cross. But his prior statments are admissible becuase they are closer to crime in time and therefore more reliable.
Subject to cross is not a high bar. For example if witness is on stand and claims he cant remember that is good enough.
Does not matter if he ID is consistent or inconsistent.
801(d)2- Party Opponent Statements
Every statement your adversary states is admissible. He does not have to testify just has to say it.
Question of completeness- If party introduces part of a statement then adverse party may ask for the entire statement to be included that in fairness should be included.
“drugs were mine but not the gun” cant just introduce the drugs part and imply the gun was also.
If statement is required to be admitted for fairness (like example above) but is hearsay unsure if can be included. Probably will be.
Personal Knowledge is not required because here we arent worried about reliability.
801(d)2(a)- Personal Statements
Personal knowledge is not required so is admissible.
801(d)2(b)- Adoptive Statements (conduct or silence)
Express- not hearsay if party adopted statement as truth. “did you kill him” “YES I DID”. that is adopted and not hearsay.
Implied- Judge must decide if normal person would have been induced to respond. Lack of denial is deemed adopted if normal person would have denied.
Judge must find that D heard, understood and acquiesced. Presence of cops probably shows not adopted.
801(d)2(c)- Statement by Authorized Speaker
Must have delegated speaking authority to the person. Must have POE to show that he has authority to speak on the matter.
Basically if you hire someone to speak on your behalf you gotta live with that decision.
801(d)2(d)- Agent/ Employee statemtns
Must show by POE 1) Employee worked at the time of statemtent 2) Statement is matter within scope of employment 3) made during the course of the job (made on the job)
801(d)2(e)- Co-Conspirator during and in furtherance of conspiracy
If join a conspiracy, everyone’s acts are attributable to you.
conspiracy does not have to be an actual charge.
Just because guy who made statement is acquitted doesnt mean statements are inadmissible.
Part of conspiracy- independent evidence required to show he is part of conspiracy (can be hearsay evidence because only for judges ears).
During the conspiracy - cant be statement before meeting of the minds to engage in conspiracy. If party is not part yet but conspiracy has begun, can be included because it is like a train. If he withdraws, the connection is cut. Conspiracy ends when objective of conspiracy are achieved or abandoned.
In furtherance- Intent based approach. Doesnt have to actually further it.
Hearsay Exception 804
Unavailable
Proponent must prove that the W is unavailable.
Ways to be unavailable:
1) Privilege- W must come up and say what his privilege is and cannot be one he created (like the 5th).
2) Refusal- If judge orders and he still refuses then can be unavailable.
3) Memory Lack- Permanent lack of memory is good excuse. If he remembers some then he is considered available and will be crossed.
4) death or illness- Balance the need for live testimony. Could delay or just use hearsay.
5) Absent- Must try hard to find
Hearsay Exception 804
IF Unavailable but have former testimony
Must be given in hearing, deposition, or trial.
Testimony is offered against a party who had an ability to cross examine the testimony earlier.
Civil- Must consider if prior party is predecessor in interest who had opportunity and similar motive to develop the testimony.
Criminal- Does not apply unless they are the same parties (confrontation clause is the issue here).
Similar Motive is very important- Must be the same issue at trial OR trying to get the same point out of the witness. Not a question of fairness rather just similar motive.
GJ v Trial seems to allow witness from GJ because Gvmt trying to draw negative testimony out.
Hearsay Exception 804
If Dying Declaration
REQUIREMENTS
1) Declarant must have been aware (and prove) that he was about to die. (can show death on mind as proof “I don’t want to die”).
2) Must be about the cause of his death.
3) Must have personal Knowledge
Hearsay Exception 804
If Against Interest
1) Must be that the only reason he made it was because it was true. So contrary to his interests that it must be true (negative must be penal or pecuniary).
2) If its a criminal case, then it must be supported by some type of evidence (fingerprints for example).
3) Personal knowledge
Statements against self and others- Depends on circumstance. If to LE then probably to curry favor and not admissible. If to friends (even mom) then adds a degree of reliability.
Statement against self but for others. Also depends on circumstance. If hurts self, then accepted as truth (admit but already serving life doesn’t do much).
Criminal Context, if testifies to own guilt and others innocence there must be something else in evidence. Can use inside knowledge to show he probs did it.
Forfeiture of Hearsay Objection
If you cause the declarant’s unavailability and you had intent to do so then you waive the right to object for hearsay.
Deportation is considered as wrongful avoidance of testimony.
Does not have to be the sole intent of actions.
If conspired to keep down testimony and an act which led to unavailability was in furtherance and in the scope of conspiracy then waives right.
Hearsay Exception 803
Old testimony is more reliable than current testimony.
Present Sense Impressions
This is where W testifies to hearing someone say something at the moment of the event.
1) must be immediate- Made while or immediately after declarant perceived the event (minutes at most).
2) Describes or explains the event WITH IMMEDIACY
3) Must be corroborated by independent evidence. Although it does not have to be super corroborated.
4) Must have personal knowledge of the act (know who is at the door, not just says without knowledge).
Hearsay Exception 803
Old testimony is more reliable than current testimony.
Excited Utterance
It is reliable because it is hard to lie when excited by an outside act,
Startling Event- Must be unexpected, and something that would startle a reasonable person.
Must be under continuous influence of the startling event when statement made. This reduces risk of lying. Must consider circumstantial factors like time since event, D relationship to event, age, severity of act, or self serving. All of these factors play a role in deciding if excitement is enough to play a role.
Texts create a hard question because don’t know emotion.
Must be related to what is making him excited.
Must have personal knowledge.
