Evidence: Hearsay

Question 1

Two-Part Definition

Answer 1

(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

Question 2

non-hearsay statements

Answer 2

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.

Question 3

Principal categories of non-hearsay purposes

Answer 3

1. verbal act
2. To show effect on person who heard or read the statement
3. Circumstantial Evidence of Speaker’s State of Mind

Question 4

Verbal Act

Answer 4

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

Question 5

To show effect on person who heard or read the statement

Answer 5

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.

Question 6

Prior Statements of Trial Witness

Answer 6

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.

Question 7

Three witness-statement exclusions from hearsay. Witness is currently subject to cross-examination AND:

Answer 7

1. Witness’s prior statement of identification of person; or
2. Witness’s prior inconsistent statement IF oral, under oath handmade during formal trial,hearing, proceeding or deposition; or
3. Witness’s prior consistent statement IF being used now to rebut charge of recent fabrication or improper motive or influence.

Question 8

Party Admissions (statement of opposing party)

Answer 8

1. Any statement made by a party is admissible if it is offered against the party.

Question 9

Adoptive Admission

Answer 9

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.

Question 10

Vicarious Party Admissions

Answer 10

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

Question 11

Co-conspirator’s statement

Answer 11

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.

Question 12

Hearsay Exceptions

Answer 12

1. Forfeiture by wrongdoing
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Excited Utterance
6. Present Sense Impression
7. Present State of Mind
8. Declaration of intent
9. Present physical condition
10. Statement for purpose of medical treatment or diagnosis
11. Business Records
12. Public Records

Question 13

Note on Criminal Defendant’s rights of Confrontation:

Answer 13

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).

Question 14

Grand jury testimony is

Answer 14

Testimonial

Question 15

statements in réponse to police interrogation:

Answer 15

(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.

Question 16

Documents:

(a) business records
(b) sworn affidavits
(c) A forensic report

Answer 16

(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

Question 17

Even if a forensic report is testimonial

Answer 17

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.

Question 18

Forfeiture Hearsay Exception (Declarant Unavailable Due to D’s Wrongdoing)

Answer 18

Any type of hearsay statement is admissible against a D whose wrongdoing made the witness unavailable if the court finds:

1. by preponderance of evidence
2. 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.

Question 19

Former testimony

Answer 19

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.

Question 20

Grounds for Unavailability

Answer 20

1. Privilege
2. Absence from jurisdiction
3. illness/death
4. lack of memory
5. Stubborn refusal to testify
   * same grounds of unavailability apply to all exceptions where unavailable is a requirement

Question 21

Statement against Interest

Answer 21

(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.

Question 22

Dying Declaration

Answer 22

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

Question 23

SPontaneous statements (unavailability not required)

Answer 23

1. excited utterances
2. Present sense impression
3. present state of mind
4. declaration of intent

Question 24

Excited Utterances

Answer 24

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event

Question 25

Factors to consider in detemirning whether a statement qua flies as excited utterance.

Answer 25

1. Nature of incident
2. Passage of time
3. Visual cues (exclamatory phrease, excitement or exclamation points)

Question 26

Present sense impression

Answer 26

Description of event made while the event is occurring or immediately thereafter.

Question 27

Present state of mind

Answer 27

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions.

Question 28

Declaration of intent

Answer 28

Statement of declaration’s intent to do something in the future including the intent to engage in conduct with another person.

Question 29

Present Physical Condition

Answer 29

statement made to anyone about declarant’s current physical condition

Question 30

Statement made for the purpose of obtaining medical treatment or diagnosis

Answer 30

If it concerns:

1. Present symptoms
2. Past symptom
3. 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.

Question 31

Business Records

Answer 31

1. records of a business of any type
2. made in the regular douse of business
3. the business regularly keeps such records
4. made contemporaneously (at or about the time of event)
5. contents consist of– information observed by employees of business or a statement that falls within an independent hearsay exception

Question 32

Proving business records foundation

Answer 32

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

Question 33

Public Records

Answer 33

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.

Question 34

Hearsay within Hearsay

Answer 34

1. If a hearsay statement is included within another hearsay statement the evidence is inadmissible unless each statement falls within a hearsay exception

Question 35

Impeachment of Hearsay Declarants

Answer 35

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.