Evidence Hearsay

Question 1

Steps for Hearsay

Answer 1

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?

Question 2

Step 1) Is It Hearsay?

What is hearsay

Answer 2

Statement not made while testifying at the current trial or hearing that is offered in evidence to prove the truth of the matter asserted.

Question 3

Statement not offered for truth

Answer 3

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.

Question 4

Other Non-Hearsay

Answer 4

“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.

Question 5

Effect on Listener (notice, knowledge, motive, good faith, probable cause)

Answer 5

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.

Question 6

Implied Assertions

Answer 6

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.

Question 7

Step 2- Does an exclusion apply?

Answer 7

If an exception or exclusion apply then the evidence will be admissible even if it fits the definition of hearsay.

Question 8

801(d)(1)- Prior Statements

Answer 8

Prior statements are potentially hearsay because cross examination would be weaker since statements are old.

Question 9

801(d)1(a)- Inconsistent statements

Answer 9

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).

Question 10

801(d)1(b)- Consistent statements

Answer 10

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.

Question 11

801(d)1(C)- Prior Identifications

Answer 11

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.

Question 12

801(d)2- Party Opponent Statements

Answer 12

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.

Question 13

801(d)2(a)- Personal Statements

Answer 13

Personal knowledge is not required so is admissible.

Question 14

801(d)2(b)- Adoptive Statements (conduct or silence)

Answer 14

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.

Question 15

801(d)2(c)- Statement by Authorized Speaker

Answer 15

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.

Question 16

801(d)2(d)- Agent/ Employee statemtns

Answer 16

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)

Question 17

801(d)2(e)- Co-Conspirator during and in furtherance of conspiracy

Answer 17

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.

Question 18

Hearsay Exception 804

Unavailable

Answer 18

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

Question 19

Hearsay Exception 804

IF Unavailable but have former testimony

Answer 19

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.

Question 20

Hearsay Exception 804

If Dying Declaration

Answer 20

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

Question 21

Hearsay Exception 804

If Against Interest

Answer 21

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.

Question 22

Forfeiture of Hearsay Objection

Answer 22

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.

Question 23

Hearsay Exception 803
Old testimony is more reliable than current testimony.
Present Sense Impressions

Answer 23

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).

Question 24

Hearsay Exception 803
Old testimony is more reliable than current testimony.
Excited Utterance

Answer 24

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.

Question 25

Hearsay Exception 803(3)
Old testimony is more reliable than current testimony.
Then existing state of mind

Answer 25

Person knows his own state of mind so not issue of accuracy. Must happen close to event so doesn’t have time to lie.

Uses: Prove physical condition, state of mind, prove disputed conduct.

State of mind must be in issue. Meaning the “mens rea” must be an element of the case.

If statements of SOM have factual assertions that might be used for their truth, the statement can be used with limiting instruction. Judge may try and find other evidence to the same issue that doesn’t have downside facts.

Homicide Cases (conduct and SOM are in dispute): Prove fear in self defense, prove suicide, prove fear of guns.

Question 26

Hearsay Exception 803(3)
Old testimony is more reliable than current testimony.
Then existing state of mind- Hillman Doctrine

Answer 26

Hearsay can be used to show SOM and conduct if conduct is in dispute.

For example, defense is accidental shooting and V said earlier I am scared he is going to kill me. Statement is admissible to help prove SOM and conduct because if fearful then probably didn’t clean guns together.

Again, must have conduct in dispute.

A spin-off of this issue relates to witness statement to prove third party conduct. Must include Declarant conduct and 3rd party. For example, I am going to meet Jon. Most courts will exclude although 2nd circuit allows with corroberating evidence.

Cannot use this exception to prove past acts.

Question 27

Hearsay Exception 803(4)

Medical Diagnosis

Answer 27

1) Statement made for and reasonably pertinent to medical diagnosis/treatment. 2) Describes medical history, symptoms, and their cause 3) does not have to be a Dr. and can be about anyone.

Statement of Causation- Admissible if pertinent to diagnosis. For example, “i got hit by car” is pertinent because Dr wants to know if car or bike.

Statement attributing fault- generally not admissible because not pertinent. There is an exception for domestic violence and sexual abuse where part of the treatment is removing from danger.

Statements to phsyco’s is only admissible if used to diagnose. If gave pills for issue that should have led to drastic measures then inadmissible.

Solely for litigation is still admissible because Dr will be crossed and jury can discount statement weight.

Question 28

Hearsay Exception 803(5)

Past Recollection

Answer 28

Out of court statement in a document made by a record keeper may be admissible. Must ask if remember, when he says no, show him statement and ask if made accurately, if he says yes then read statement into evidence.

Question 29

Hearsay Exception 803(6)

Business Records

Answer 29

Regularly conducted activity that is regularly recorded when occurs.
1) record made at or near time of statement. 2) kept in regularly conducted activity. 3) Making record was regular practice 4) Witness testifies to certification 5) No showing of lack of trustworthiness.

Does not have to be an activity for profit just regularly recorded.

Regular activity is strictly construed. (Murder list not regular so inadmissible).
Regularly conducted- So diary is not admissible because covers much too broad of a subject matter.

Witness can include certificate from corporations. This was made by corporations to save time spent in trial.

Question 30

Hearsay Exception 803(6)

Business Records- Double Hearsay issue

Answer 30

Record includes statement from inside business AND statement from outside business. So now there is an issue of hearsay on both statements.

1) admissible if information is verified.
2) Admissible if the second statement has its own hearsay exception (like excited utterance).
3) Not offered for its truth

Question 31

Hearsay Exception 803(6)

Business Records- Suspect Motivation

Answer 31

We are worried about manipulating records. So a report that goes in favor of the preparer is inadmissible.

Computer report has issues of trustworthiness so an IT guy testimony helps.

Question 32

Hearsay Exception 803(6)

Business Records- Double Hearsay issue

Question 33

Hearsay Exception 803(7)

Absence of Business Records-

Answer 33

If have same requirements of business records but not recorded can be evidence that thing did not happen.

Question 34

Hearsay Exception 803(8)

Official Public Records

Answer 34

Records office activities or record under legal duty to report (except by law enforcement in criminal case) or cases against gvmt, or factual findings from authorized investigation UNLESS untrustworthy.

More flexible than private record because we presume gvmt reports the truth.

Untrustworthy-

1) same double hearsay issue. Strike the hearsay statements but can include report because drafter can use hearsay to make conclusion report.
2) If reporter has a bias and the report cuts in the bias favor then inadmissible. For example, officers who find pro-officer conclusion.
3) opinions in report (conclusion) will be allowed but will treat him as an expert and he has to satisfy the Daubert requirements.

Question 35

Hearsay Exception 803(8)

Official Public Records- Oats/Grady

Answer 35

Oats- LE report is not admissible if primary purpose is to prosecute. Need a witness to present at trial. Concern about bias and confrontation issues.

Grady- Admits a LE report because it was routine and crime has not yet occurred.

Grady Cases- prepared list of serial gun numbers is allowed because not done in prep of litigation. Border report of car location allowed because murder has yet to occur.

Middle Type examples

1) Drug tests weighing the drugs- Oats because done for litigation.
2) Machine reports are not hearsay
3) Certificate that breathalizer works is admissible.

Question 36

Hearsay Exception 803(8)

Absence of Official Public Records

Answer 36

Basically has an issue of Oats and therefore there must be a diligent search and a witness must testify about the search.

Question 37

Hearsay Exception 803(16)

Ancient Docs

Answer 37

If doc from before 1-1-98 and needed for truth then is admissible.

Question 38

Hearsay Exception 803(16)

Treatise, periodical, or pamphlet

Answer 38

Statement made in one of the three publications listed may be used if 1) called to the attention of the expert W on cross, or she relies on the publication on direct 2) must be established as reliable.

Must read it into evidence while a witness is there to explain. Cannot just admit it blindly.

Read into evidence but is not an exhibit in the case.

Question 39

Rule 807- Residual Hearsay Exceptions

Answer 39

If there is not fitting hearsay exception you can still get in with rule 807.

1) must have sufficient guarantee of trustworthiness.
2) must be more probative than any other evidence that can be found with reasonable effort
3) Must give reasonable notice.

Question 40

Rule 807- Definition of totality of circumstances that lend to reliability

Answer 40

Circumstances may help reliability: relationship of declarant, capacity, random statement or after prodding, anticipation of litigation, formality, was there retraction, memory lapse, or corroboration.

Question 41

Rule 807- statement that goes between 2 exceptions but not quite gets them

Answer 41

Weird problem here because on the one hand, you missed the exception so shouldn’t be in. On the other hand, you basically had 2 exceptions so feels dumb to hold you out.

Again, court relies on case by case approach to decide to let it in or not.

Question 42

Rule 807- Corroboration

Answer 42

This is not dispositive. Must weigh the evidence and consider its strength.

Question 43

Rule 807- More Probative

Answer 43

If the D is not shown to be unavailable then there is little chance 807 will help. Always more probative to have witness there so if not shown then not allowed.

Exception- if the D is a child most courts will allow 807 to use their statements. This is because children testimony is not great and therefore not very probative.

Question 44

Rule 807- Notice

Answer 44

This protects against using the residual exception too liberally.

Forces the other side to have time to prepare.

Notice must be before trial but can be excused if there was good cause to not have notice (W just disappeared suddenly).