Evidence - Hearsay

Question 1

What is the “public records” exception to hearsay? NOTE: NY Distinction

Answer 1

Allows as ADMISSIABLE any public record of a public office or agency setting forth: 1) the activities of the office/agency (e.g. payroll records); OR 2) matters observed p/t a duty imposed by law; OR 3) findings of fact or opinion resulting from an investigation authorized by law (even if info come fron an outsider) EXCEPTION: the public record exception does NOT include police reports prepared for prosecutorial purposes against a CRIMINAL ∆ NY DISTINCTION: this doctrine is NOT well developed in NY; conclusions/opinions contained in a gov’t report are admissable ONLY IF (i) the report sets forth adequate facts; AND (ii) the person giving the opinion is qualified

Question 2

What are 2 categoriesout-of-court statements asserted for their truth that are STILL admissible as “nonhearsay”? NOTE: NY Distinction

Answer 2

Nonhearsay = nws meeting CL definition of hearsay (they ARE stmts offered to prove the matter asserted), certain stmts are STILL admissible… 1) Certain pior statements of trial witness: Witness’s prior stmt of ID of a person after seeing him Witness’s prior inconsistent stmt if (i) oral; (ii) under oath; AND (iii) made during formal testimonial hearing» serves impeachment AND as substantive evidence NY DISTICTION: In NY this ONLY serves impeachment purpose Witness’s prior consistent stmt if being used to rebut a charge of recent fabrication or improper motive&raquo_space; serves rehabilitation AND as substantive evidence NY DISTICTION: In NY this ONLY serves rehabilitation purpose 2) Party admissions aka Stmt of Opposing Party Any stmt (personal knowledge by declarant is NOT necessary) made by the opposing party is admissible if it is offered against the opposing party Adoptive admission: if a party expressly or impliedly adopts a stmt made by another person, it is AS THOUGH the party herself made the stmt Vicarious party admission: stmt by AGENT/EMP is admissible against principal/employer IF (i) the stmt concerns matters w/in scope of agency/employment; AND (ii) is made during the existence of the agency/employment relationship NY DISTINCTION: stmt is admissible against principal/employer ONLY IF the principal/employer gave agent the authority (express or implied) to speak on the matter Co-conspirator’s stmts: a stmt of a co-conspirator is admissible against a party who was a member of the conspiracy IF the stmt was made (i) during; AND (ii) in furtherance of the conspiracy

Question 3

What is the “declaration of intent” exception to hearsay? NOTE: NY Distinction

Answer 3

Statement of intent by declarant to do something (i) in the future; OR(ii) w/another person. NY DISTINCTION: IF stmt is offered to prove JOINT particpation of another person, NY requires (1) corroboration of prior connection between declarant and other person; AND (2) requires unavailability

Question 4

What are the 12 key EXCEPTIONS to the hearsay rule?

Answer 4

1) Excited utterance 2) Present sense impression 3) Present state of mind 4) Declaration of intent 5) Present physical condition 6) Stmt for the purpose of obtaining medical treatment/diagnosis 7) Business records 8) Public records Requiring UNAVAILABITY of declarant… 9) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules) 10) Former testimony 11) Statement against interest 12) Dying declaration

Question 5

How can a party impeach a hearsay declarant?

Answer 5

ANY impeachment method may be used to attack the credibility of a hearsay declarant whose stmt was admitted into evidence

Question 6

What is the “former testimony” exception to hearsay?

Answer 6

Former testimony of a now-unavailablewitness, from prior proceeding/dep is ADMISSABLE against a party who had: 1) Opportunity andmotive to cross the witness; AND 2) The issue was essentially the same NOTE: Don’t confuse w/prior inconsistent statementunder oath in formal proceeding = nonhearsay exclusion.

Question 7

What is the “present state of mind” exception to hearsay?

Answer 7

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions, or INTENT (i.e. unique knowledge) NOTE: Can overlap w/ non-hearsay exclusion forcircumstantial evidence of declarant’s state of mind (e.g. insane)

Question 8

What are the grounds for UNAVAILABILITY as required by certain hearsay exceptions? NOTE: NY Distinction

Answer 8

1) Privilege 2) Absence from the jx: (i) can’t find declarant w/ due diligence; OR (ii) declarant is beyond ct’s subpoena pwr 3) Illness or death 4) Lack of memory 5) Declarant’srefusal to testify (even if they’d be in contempt) NY has two ADDITIONAL grounds for unavailability (for CIVIL CASES ONLY)… 6) Declarant is > 100 miles from ct house 7) Declarant is a physician (public policy favors that the dr. continues their work rather than testify AGAIN)

Question 9

What is the “medical/diagnoisis” exception to hearsay? NOTE: NY Distinction

Answer 9

Statement is admissible IF Made: 1) To medical personnel (e.g. doc, nurse, EMT, psychologist); 2) Concerning past/present symptoms OR GENERAL cause of condition; AND 3) For the purpose of diagnosis/treatment NOTE: this exception DOES NOT include stmts in which the declarant IDENTIFIES a tortfeasor or DESCRIBES the nature of alleged liability (i.e. it’s not relevant to treatment) UNLESS it’s an ID of an abuser in a domestic/child context NY DISTINCTION: this exception does NOT apply to stmts made to a physcian SOLELY for the purpose of helping the physican to develop an opinion for expert testimnoy at trial

Question 10

What is the “present sense impression” exception to hearsay? NOTE: NY Distinction

Answer 10

Virtually contemporaneous stmt made WHILE event is occurring OR immediately thereafter (descriptive but not necessarily emotional) NY DISTINCTION: requires corroborating evidence of the contents of the present sense impression

Question 11

When is a “statement” subject to the hearsay exclusion rule?

Answer 11

STEP 1: Is the stmt offered to prove the matter asserted? [No = (i) legally operative words; (ii) stmts offered to show effect on hearer/reader; (iii) stmts offered to show declarant’s state of mind] YES: STEP 2 NO: NOT HEARSAY, so not subject to hearsay exclusion rule STEP 2: Is the stmt a nonhearsay exclusion? [Exclusion = (i) prior inconsistent stmt given under oath; (ii) prior consistent stmt used to rebut a charge that witness is lying/has improper motive; (iii) stmt of ID of a person; (iv) party admission] YES: NONHEARSAY, so not subject to hearsay exclusion NO: STEP 3 STEP 3: Does a hearsay exception apply? [(i) excited utterance; (ii) present sense impression; (iii) present state of mind; (iv) declaration of intent; (v) present physical condition; (vi) stmt for medical treatment; (vii) business records; (viii) public records; (ix) former testimony; (x) stmt against interest; (xi) dying declaration (xii) forfeiture] YES: ADMISSIBLE, provided it’s not excluded under any other rules (e.g. best evidence, relevancy, etc) NO: INADMISSIBLE, stmt IS excluded by hearsay rule

Question 12

What is the “dying declaration” exception to hearsay? NOTE: NY Distinction

Answer 12

Statement by a now-UNAVAILABLE declarant is admissible IF made: 1) In ALL civil cases OR homicide (criminal) case; NY DISTINCTION: ONLY available in criminal HOMICIDE cases 2) the declarant is under belief of impending & certain DEATH; AND 3) stmt is concerning cause or circumstances of declarant’s death

Question 13

What is the “excited utterance” exception to hearsay?

Answer 13

Excited Utterance is a stmt: 1) Concerning startling event; 2) While declarant is still under stress of excitement it caused. Factors to consider… the nature of the event the passage of time (no bright line but >1hr is less likely to be valid) NOTE: if the fact pattern look for: (i) exclamatory language; (ii) excitement-oriented verbs; AND (iii) EXCLAMATION PTS!!!

Question 14

What is the “present physical condition” exception to hearsay? NOTE: NY Distinction

Answer 14

Statement made to ANYONEaboutdeclarant’s current physical condition NY DISTINCTION: requires unavailability, if the stmt is made to a LAYPERSON (vs. medical professional)

Question 15

What is hearsay?

Answer 15

Hearsay = (i) an out of ct stmt of a person (oral or written); (ii) offered to prove the truth of the matter asserted (in the stmt) RULE: Hearsay stmts are INADMISSABLE UNLESS an exception or exclusion applies Rationale: The credibility of the declarant (out-of-ct speaker or author) at the time the stmt was made WAS NOT TESTED thru cross examination in the presence of the CURRENT factfinder

Question 16

What is the “stmt against interest” exception to hearsay?

Answer 16

Declarant’s stmt is ADMISSABLE for its truth IF… 1) Declarant is unavailable 2) It is against his/her: Pecuniary interest (i.e. self-damaging stmt abt fin. situation); Property interest (i.e. something that diminishes property interest); OR Penal interest (self-damaging stmt abt penal interest) 3) Must be against interest when made 4) Can be made by ANY declarant (not just party) NOTE: In criminal cases statements by declarant against his penal interest and which are exculpatory for Δ, must be corroborated

Question 17

What is the 6th Am effect on admissablity of hearsay evidence in a criminal case? NOTE: NY Distinction

Answer 17

RULE: In the context of hearsay, the prosecution may NOT use a hearsay stmt against the criminal ∆ (even if falls w/in a hearsay exception) IF: the stmt is TESTIMONAL; “Testimonial” = (i) grand jury testimony; (ii) stmts in response to police interrogation IF purpose of the questiioning is to est/prove past events that are potentially relevant to criminal prosecution; (iii) sworn affidavits; (iv) forensic lab reports used to target individual NOT “testimonial” = (i) police questioning enabling police assistance in meeting ongoing emergency; (ii) business records; (iii) general DNA profiling w/o ind. suspect in mind the declarant is UNAVAILABLE; AND the ∆ has no opportunity for CROSS EXAMINATION (either before or at trial) “Forfeiture exception”: Any type of hearsay stmt IS ADMISSIBLE against a ∆ whose WRONGDOING made the witness unavailable, IF the ct finds (i) by a preponderance of the evidence; (ii) that ∆’s conduct was SPECIFICALLY designed to prevent the witness from testifying NY DISTINCTION: In NY the std of judicial review is higher…Clear and Convincing Evidence

Question 18

What is the rule ofdouble hearsay?

Answer 18

If a hearsay stmt is included WITHIN another hearsay stmt, the evidence is inadmissable UNLESS each stmt falls w/in a hearsay exception E.g. “A told me what B said”; to be admitted, A’s stmt may be an excited utterance in response to B’s excited utterance

Question 19

What are the “business records” exception to hearsay? NOTE: NY Distinction

Answer 19

Allows as ADMISSIABLE any business record of ANY type of business (public/private) IF: 1) Record made in the regular course of business 2) If business regularly keeps such records 3) The record is made at or about the time of the event 4) Consists of: info observed by an employee of the business (personal knowlege); OR info personally observed by the witness Proving business records foundation… 1) Call sponsoring witness to testify to above elements (witness need not be author of report); OR 2) Written certification under oath attesting to above elements (w/ advance notice to opposing party) NY DISTINCTION: certification method is ONLY permitted in: CIVIL ACTIONS, where the business records are those of a nonparty that has produced its records for inspection at part of PRETRIAL DISCOVERY; OR ANY TYPE OF CASE, where the business records are those of a hospital, state or local gov’t

Question 20

What are 3 categories out of court stmts that are “not hearsay”?

Answer 20

Not hearsay= An out-of-court statement which is NOT offered for its truth (so we don’t care abt credibility of declarant) 1) Legally operative words → legal rights/obligations attach SIMPLY b/c words were spoken Contract formation/repudiation, making a gift, bribe, perjury, misrepresentation, defamation, permission E.g. “I heard Trump say to Gates, ‘I accept your offer’” 2) To show effect on listener/reader of the stmt Purpose of stmt is to put listener/reader on notice of something E.g. “I heard the supermarket clerk say that the floor was wet” (We don’t care abt whether the floor is wet, BUT RATHER that speaker was on notice) 3) Circumstantial evidence of declarant’s state of mind E.g. “Two days before the killing, Homer said, ‘I am Elvis Presley.’” (stmt is offered to show the declarant is insane, NOT THAT he’s actually Elvis)

Question 21

What is Hearsay (common law / general definition)?

Rationale. Declarant’s credibility cannot be tested through cross-examination

What is NOT hearsay by witness (statements look like hearsay, but are offered to prove something other than the truth of the matter asserted.(offered as proof substantive matter of the current)

vii) NB: ASK YOURSELF: “DO WE CARE WHETHER OR NOT THE DECLARANT IS TELLING THE TRUTH TO THE CONTENT OF THE STATEMENT?” IF THE ANSWER IS “NO,” THEN THE STATEMENT IS NOT HEARSAY (NOT OFFERED FOR THE TRUTH)

Answer 21

Hearsay - is an statement made by a current witness (exhibit eg letter) at trial of a prior

(1) out-of-court statement (literally out-of-ctr of the CURRENT trial),
(2) intended as an assertion (intended as truth of what was stated (given as it actually was said),
(3) offered to prove the truth of the matter asserted (offered as proof substantive matter of the current case eg murder/negligence/thief).

What is NOT hearsay (these statements are NOT trying to prove the substantive matter of the case) - - ADMISSIBLE as evidence

(i) Verbal act or legally operative fact: If a statement is offered to prove that the statement was made, regardless of its truth, it is admissible.
(ii) Effect on the listener: A statement offered to show the effect on the person who heard it is admissible
(iii) State of mind of declarant- a statement offered as CIRCUMSTANTIAL evidence of the declarant’s mental state is admissible - HOWEVER a statement that is a direct description of mental state and is used to prove that mental state is hearsay.

-

Question 22

How are prior statements by DECLARANT-WITNESS (currently testifying witness who was the person who made the out-of-ctr statement) treated and what are the hearsay exceptions to prior statements by currently testifying witness?

Also what about Prior Admission Statement (ADMISSION BY PARTY-OPPONENT)

There is no “against interest” requirement in this rule unlike Statements Against Interest (FRE 804(b)(3)) for UNENVIABLE witnesses

Answer 22

Prior Statements By Currently Testifying Witness

Rule. A witness’s (even if D is testifying) own prior statement, if offered to prove the truth of the matter asserted in the statement (substantive matter), is hearsay and is inadmissible unless an exception or exclusion applies

Exception: Three Prior Statements made in the past by testifying witnesses are treated as NONHEARSAY - - REQ that the Declarant-Witness NO W TESTIFY subject to cross-examination in current trial

(i) Prior Inconsistent Statements Declarant-Witness
- Can be used for BOTH (a) impeachment and (b) substantive evidence but only if if (1) made under oath (2) under a formal proceeding. If NOT under oath under formal proceeding then ONLY CAN USE AS IMPEACHMENT
- N.Y. Distinction But in N.Y., admissible only to impeac
(ii) Prior Consistent Statements
- Can be used as (i) to rehabilitate a witness and (ii) as substantive evidence

N.Y. Distinction -> But in N.Y., admissible only to rehabilitate

• (a) Must be used as a defense to an express or implied charge of recent fabrication or improper motive by the counter party (used to rebut an accusation of a motive to lie)

AND

• (b) The statement must be made before motive to lie arose (the statement must have been made prior to the alleged improper motive arose.
  (iii) Prior statement of identification (NOTE the witness MUST be testifying at the CURRENT trial in order to use the prior statement of identification of THAT witness)
• A previous out-of-court identification of a person (after perceiving that person) is admissible as proof of what it asserts / substantive evidence if the declarant is now testifying at trial (because DECLARANT-WITNESS subject to cross-examination).

PARTY ADMISSIONS DOCTRINE (ADMISSION BY PARTY-OPPONENT)

There is no “against interest” requirement in this rule.

A prior out-of-court statement made by a party to the case may be introduced against that party (can introduce statement made in support of the party); it is not considered hearsay. ONLY Your adversaries can admit your prior out-of-court statement statements against you.

• Rationale. “You say it, you’re stuck with it”; estoppel
• Misnomer. “Statement of a party opponent”
  (a) The out-of-court statement doesn’t have to be admitting anything
  (b) All that matters is that the other side wants to use it against the party

Adoptive Admissions

• An adoptive admission is a statement made by someone else, which is then expressly or impliedly adopted as the party’s own statement.
• Silence is is adoptive admission ONLY if (i) party was present, heard, and understood the statement (ii) party had the ability and opportunity to deny the statement made by someone else it; and a reasonable person similarly situated would have denied the statement if it were false

Vicarious Admissions

Statements made by a party’s agents, employees, or speaking agents (e.g., PR reps, lawyers) will be treated as a party’s statement (if the statements were made within the scope of employment).

(c) N.Y. Distinction A statement by an agent or employee is admissible against the principal only if the agent or employee had speaking authority (e.g., CEO, GC, VP for Communications

Co-conspirators (three elements

Statements (i) made by co-conspirators are admissible against other co-conspirators which statements must have been made (ii) during the course /during (conversation between conspirators) of the conspiracy and (iii) in furtherance of the conspiracy.(this is an agency rationale and statements of a furtherance of the conspiracy are statements that would be admissible anyway)