Evidence - Hearsay

Question 1

Hearsay Definition/Basic Rule

Answer 1

Definition: a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted

Statement: a person’s assertion - can be oral, written, or nonverbal contact intended as an assertion

TOMA: statement is offered for its truth when there’s a match between why it is being offered and what the statement says

Basic Rule: Hearsay is inadmissible unless an exception applies

Question 2

Hearsay Exclusions - 3 testifying witness exclusions

Answer 2

(1) Testifying Witness’s Prior Statement of Identification
(2) Testifying Witness’s Prior Inconsistent Statement made under Oath
(3) Testifying Witness’s Prior Consistent Statement

Certain statements by a person who testifies at the trial or hearing, and is subject to cross-examination about the statements, are not hearsay. A witness is generally “subject to cross-examination” when he is placed on the stand, is under oath, and responds willingly to questions

Question 3

Testifying Witness’s Prior Statement of Identification

Answer 3

A witness’s prior statement identifying a person as someone he perceived earlier is not hearsay

As long as the witness is testifying at the trial or hearing, he can testify about his prior identifications

Question 4

Testifying Witness’s Prior Inconsistent Statement made under Oath

Answer 4

A witness’s prior inconsistent statement is not hearsay if it was made under penalty of perjury at a prior trial or proceeding, or in a deposition.

Question 5

Testifying Witness’s Prior Consistent Statement

Answer 5

A prior consistent statement, regardless of whether made under oath, is not hearsay if it is offered under either of the following circumstances:

(1) to rebut an express or implied charge that the witness is lying or exaggerating because of some motive, provided the prior consistent statement was made before the onset of the alleged motive to lie or exaggerate or

(2) to rehabilitate a witness whose credibility has been impeached on some non-character ground other than a charge of recent motivation to lie or exaggerate, such as an alleged inconsistency or sensory deficiency

Question 6

Hearsay Exclusion - Statements made by an Opposing Party (Admissions by a party opponent)

Answer 6

Any statement made by a party and offered against that party is not hearsay

Admissions by silence (type of opposing party statement):
(1) party failed to respond to an accusatory statement
(2) party must have heard an understood the accusation
(3) party must have been physically and mentally capable of denying the accusation, and
(4) a reasonable person would have denied the accusation under the same circumstances

Question 7

Hearsay Exclusion - Vicarious Statements of an Opposing Party

Answer 7

Most obvious situation: when the party authorized someone else to speak on their behalf - this statement is clearly attributable to the party and can be offered against the party

Statements by a party’s employee or agent
- a statement by an agent or employee is admissible against the principal or employer if the statement concerns a matter within the scope of the agency or employment and is made during the agency or employment

Co-Conspirators
- The statement of a party’s co-conspirator is not hearsay when offered against the party if it was made during and in furtherance of a conspiracy
-***doesn’t qualify as a vicarious opposing statement if it was made after the conspiracy was over or if it was made to thwart the conspiracy

Question 8

Hearsay within Hearsay

Answer 8

An out of court declarant repeats or transcribes the statement of another declarant

All statements need to fall into an exception or exclusion

if an outer hearsay statement contains inner hearsay statement, an one qualifies and one doesn’t, it can be bifurcated [redacted]

Question 9

Hearsay Unavailability Exceptions

Answer 9

(1) Former Testimony
(2) Statement Against Interest
(3) Dying Declarations

5 grounds that constitute unavailability:
(1) Death or serious illness
(2) Privilege
(3) Lack of Memory
(4) A stubborn refusal to testify despite a court order to do so
(5) Absence from the trial or hearing despite the proponent’s attempts to procure their attendance or testimony

Question 10

Former Testimony Exception

Answer 10

The former testimony of a now-unavailable declarant, given at a former trial, hearing, or deposition is admissible against a party who, at that time, had an opportunity and similar motive to develop the declarant’s testimony by direct, cross, or redirect examination

Opportunity: relates to who the parties were in the previous case - the party against whom the testimony is now being offered must have been a party in the former case

Similar Motive: relates to the issues in the previous case - the parties don’t have to be exactly the same, but if the testimony is from a different case, the issue in both cases must be essentially the same

Question 11

Statement Against Interest Exception

Answer 11

An unavailable declarant’s statement is an exception to the hearsay rule if it was so contrary to their interest when made that a reasonable person would have said it only if they believed it to be true

“Against the declarant’s interest”
- financial, proprietary, or criminal interest (if the only repercussion is that the statement would subject the declarant to social ridicule, that’s not covered)

Statements that subject the declarant to criminal liability must be corroborated when they are offered in a criminal case

Question 12

Dying Declaration

Answer 12

A statement by an unavailable declarant, made while the declarant believed their death was imminent, and concerning the cause or surrounding circumstances of the apparently imminent death, is admissible as a hearsay exception when offered in a homicide prosecution, or in a civil case

Question 13

Rule 803 Exceptions - Unavailability not required

Answer 13

(1) Excited Utterance
(2) Present Sense Impression
(3) Present State of Mind
(4) Statement made for Medical Diagnosis or Treatment
(5) Business Records
(6) Public Records
(7) Recorded Recollection
(8) Learned Treatises

Question 14

Excited Utterance Exception

Answer 14

A declaration made by a declarant during or soon after a startling event is admissible. The declaration must be made under the stress of excitement produced by the startling event. The declaration must relate to the startling occurrence

Question 15

Present Sense Impression Exception

Answer 15

A statement that describes or explains an event or condition and is made while the declarant is perceiving it, or immediately thereafter

Question 16

Present State of Mind Exception

Answer 16

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is admissible

Anything relating to how the declarant was feeling at the moment they were speaking

Statements of Intent to do a future act
-“im going to get wasted tonight; I’m going for a run in the park tomorrow morning” - admissible to prove the intent and to prove that the declarant carried out his intent

Statements of Present emption
- “im so sad right now; I’ve never been happier, etc.”

Question 17

Statements made for Medical Diagnosis or Treatment Exception

Answer 17

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for - and was reasonably pertinent to - medical diagnosis or treatment

Question 18

Business Records Exception

Answer 18

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that act, event, condition, opinion or diagnosis, if made in the regular course of any business; and if it was the regular course of such business to make it at the time of the act, event, condition, opinion, or diagnosis, or within a reasonable time thereafter

Question 19

Recorded Recollection Exception

Answer 19

Witnesses are permitted to refresh their memories by looking at almost anything— either before or while testifying. This is called refreshing recollection. However, if the witness’s memory cannot be revived, a party may wish to introduce a memorandum that the witness made or adopted at or near the time of the event. Use of the record to prove the facts contained therein raises a hearsay problem; but if a proper foundation can be laid, the contents of the record may be introduced into evidence

Foundational Requirements
(1) the witness must have previously known the facts contained in the record
(2) they must be now unable to remember
(3) the record must have been made or adopted by the witness
(4) the record must have been made when the matter was fresh in the witness’s mind
(5) the record must have been accurate when made

*The document will be read into evidence - the jury will not receive the actual document as an exhibit - the jury will only receive it as an exhibit if the adverse party chooses to offer it into evidence itself