Evidence: Hearsay Flashcards
Two-Part Definition
(1) Out of Court statement by person (oral or written)
(2) Offered to prove the truth of matter asserted in statement
Hearsay Rule: Hearsay is inadmissible unless an exception or exclusion applies
non-hearsay statements
Some out of court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement.
Principal categories of non-hearsay purposes
- verbal act
- To show effect on person who heard or read the statement
- Circumstantial Evidence of Speaker’s State of Mind
Verbal Act
A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken.
Similar: Terms of patent or copyright, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts
To show effect on person who heard or read the statement
If a person hears someone else make certain statements, this may be relevant to put the listener on notice of something, or to create fear, or to give the listener a motive or probable cause to do something without regard to whether the statement is true.
Prior Statements of Trial Witness
A Witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies.
Three witness-statement exclusions from hearsay. Witness is currently subject to cross-examination AND:
- Witness’s prior statement of identification of person; or
- Witness’s prior inconsistent statement IF oral, under oath handmade during formal trial,hearing, proceeding or deposition; or
- Witness’s prior consistent statement IF being used now to rebut charge of recent fabrication or improper motive or influence.
Party Admissions (statement of opposing party)
- Any statement made by a party is admissible if it is offered against the party.
Adoptive Admission
If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement. Adoption by silence occurs when a party who hears another person’s statement remains silent under circumstances in which reasonable person would protest if the statement were false.
Vicarious Party Admissions
Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship
Co-conspirator’s statement
The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy.
Hearsay Exceptions
- Forfeiture by wrongdoing
- Former testimony
- Statement against interest
- Dying declaration
- Excited Utterance
- Present Sense Impression
- Present State of Mind
- Declaration of intent
- Present physical condition
- Statement for purpose of medical treatment or diagnosis
- Business Records
- Public Records
Note on Criminal Defendant’s rights of Confrontation:
6th A right of confrontation requires that the criminal defendant be confronted with witnesses against him.
RULE: in the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant if:
(1) statement is testimonial,
(2) the declarant is unavailable, and
(3) the defendant has had no opportunity for cross-examination (cross-examination requirement may be satisfied either before or at trial).
Grand jury testimony is
Testimonial
statements in réponse to police interrogation:
(a) testimonial if primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution
(b) non testimonial if primary purpose of questioning is to enable police assistance to meet an ongoing emergency.
Documents:
(a) business records
(b) sworn affidavits
(c) A forensic report
(a) not testimonial
(b) testimonial
(c) testimonial– if primary purpose is to accuse targeted individual of criminal conduct.
BUT a DNA report is non-testimonial if it analyzes a sample of bodily fluid collected form a crime scene for the purpose of developing a DNA profile if no particular person is suspected at time of analysis
Even if a forensic report is testimonial
no confrontation violation occurs if the prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report to show a partial basis for her opinion without reading the report to the jury or introducing it as an exhibit.
Forfeiture Hearsay Exception (Declarant Unavailable Due to D’s Wrongdoing)
Any type of hearsay statement is admissible against a D whose wrongdoing made the witness unavailable if the court finds:
- by preponderance of evidence
- that defendant’s conduct designed to prevent witness from testifying (by making the witness unavailable through his own wrongdoing, defendant forfeits both the hearsay and 6th A objection.
Former testimony
The former testimony of a now unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony the witness. Issue in both proceedings must be essentially the same.
Grounds for Unavailability
- Privilege
- Absence from jurisdiction
- illness/death
- lack of memory
- Stubborn refusal to testify
* same grounds of unavailability apply to all exceptions where unavailable is a requirement
Statement against Interest
(a) an unavailable declarant’s statement against his or her
Pecuniary Interest
Proprietary Interest
Penal Interest
(money property or criminal liability)
(b)rationale– not likley to lie when making damaging statements against such interest
(c) Statement against interest differs from party admission in four ways: Must be against interest when made, any person can make statement against interest, personal knowledge is required, declarant must be unavailable.
(d) qualification in crim cases: statement against penal interest must be supported by circumstances showing trustworthiness.
Dying Declaration
Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarants death
Type of case:
Criminal Cases: homicide
Civil Cases: Any type
SPontaneous statements (unavailability not required)
- excited utterances
- Present sense impression
- present state of mind
- declaration of intent
Excited Utterances
Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event
Factors to consider in detemirning whether a statement qua flies as excited utterance.
- Nature of incident
- Passage of time
- Visual cues (exclamatory phrease, excitement or exclamation points)
Present sense impression
Description of event made while the event is occurring or immediately thereafter.
Present state of mind
Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions.
Declaration of intent
Statement of declaration’s intent to do something in the future including the intent to engage in conduct with another person.
Present Physical Condition
statement made to anyone about declarant’s current physical condition
Statement made for the purpose of obtaining medical treatment or diagnosis
If it concerns:
- Present symptoms
- Past symptom
- General cause but not including statements describing details of liability or identity of tortfeasor unless it is the identity of abuse in domestic abuse or child abuse cases.
* does not include oral statements mdd by physician to patient.
Business Records
- records of a business of any type
- made in the regular douse of business
- the business regularly keeps such records
- made contemporaneously (at or about the time of event)
- contents consist of– information observed by employees of business or a statement that falls within an independent hearsay exception
Proving business records foundation
Call sponsoring witness to testify to the five elements of business records hearsay exception; witness need not be author of report -can be records custodian or any othe knowledgeable person within the business OR
written certification under oath attesting to elements of business records hearsay exception
Public Records
Records of a public office or agency setting forth:
1. the activities of the office or agency; or
2. matters observed pursuant to a duty imposed by law or
3. findings of fact or opinion resulting from an investigation authorized by law
Exclusion
Police reports prepared for prosecutorial purposes are not admissible against the D in a criminal case. Nor is the prosecution in such cases allowed to introduce such reports against the defendant under the alternative theory of business records.
Hearsay within Hearsay
- If a hearsay statement is included within another hearsay statement the evidence is inadmissible unless each statement falls within a hearsay exception
Impeachment of Hearsay Declarants
Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence. If the impeachment consists of a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived.
