Evidence-Hearsay

Question 1

Hearsay

Answer 1

(a) out of court statement of a person (oral or written or gesture); and
(b) offered to prove the truth of the matter asserted

Question 2

Is hearsay admissible?

Answer 2

No, unless an exception applies.

Question 3

What is hearsay within hearsay?

Answer 3

e.g. After the accident, John told me that Mary said she was fine

Admissible only if a hearsay exception applies to both statements

Question 4

What are the major nonhearsay purposes?

Answer 4

• legally operative facts (e.g. words of contract, legally operative facts)
• effect on listener (e.g. to prove notice in a defamation case)
• circumstantial evidence of declarant’s state of mind (e.g. “Joe said that Kerry was ranting to himself after taking drugs is not hearsay” but “Joe said Kerry was insane” is hearsay

Question 5

What is the legally operative facts nonhearsay purpose?

Answer 5

facts that have legal significance:

e.g. defamatory statement in a defamation trial; words of K in K trial

Question 6

What is the effect on listener or reader nonhearsay purpose?

Answer 6

e.g. to show that manager of grocery store was on notice of a dropped salsa jar in the aisle

Question 7

What is the circumstantial evidence of declarant’s state of mind nonhearsay purpose?

Answer 7

Circumstantial (NOT DIRECT) evidence of declarant’s state of mind.

e.g. to prove insanity or knowledge

Question 8

What are the hearsay exclusions?

Answer 8

• prior statements of testifying witness in certain cases (see card)
• opposing party’s statements

Question 9

General rule for prior statements of testifying witnesses?

Answer 9

witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and inadmissible (unless an exclusion applies)

Question 10

What are the exclusion exceptions for prior statement of testifying witnesses that make them admissible?

Answer 10

• witness’s prior statement of identification
• witness’s prior inconsistent statement, if made under oath during a proceeding
• witness’s prior consistent statement offered to rehabilitate the witness

Question 11

What is the exclusion exception of opposing party statements?

Answer 11

any statement made by a party is admissible against that party

Question 12

What is the exclusion exception of opposing party statements? [adoptive statements]

Answer 12

• party may adopt the statement of someone else if a reasonable person would have done so

this exception is not usually allowed in criminal cases

Question 13

What is the exclusion exception of opposing party statements? [vicarious opposing party statements]

Answer 13

certain statements by some other person admissible against a party because of the relationship between them

Agent/Employee: admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the agency/employment

Co-conspirator: admissible against party if made during and in furtherance of the conspiracy

Question 14

What are the hearsay exceptions when declarant is unavailable?

Answer 14

804 hearsay exceptions

• former testimony
• statements against interest
• dying declarations

Question 15

When is former testimony admissible as an 804 hearsay exclusion?

Answer 15

When it is given by a declarant who at a former proceeding (or deposition) where the party it is being given against now had the opportunity and motive to cross-examine the witness.

Issues in proceedings must be similar.

*in criminal cases, statements against interest must be corroborated to test trustworthiness of statements

Question 16

When is a statement against interest admissible as an 804 hearsay exclusion?

Answer 16

When an unavailable declarant makes a statement against his interest when made that a reasonable person in declarant’s position would have only made it if she believed it to be true.

Question 17

When is a dying declaration admissible as a 804 hearsay exclusion?

Answer 17

Statement must be made under a belief of IMPENDING and CERTAIN DEATH and statement must relate to the cause or circumstance of what he believed his pending death to be.

Criminal cases: homicide cases only (not even attempted homicide)

Civil: all types of cases

Question 18

What are hearsay exceptions when the unavailability of declarant is not required?

Answer 18

Rule 803

• excited utterance
• present sense impression
• then existing mental or physical condition
• statement for purposes of medical or physical diagnosis
• business records
• public records

Question 19

When is an excited utterance (803 hearsay exception) admissible?

Answer 19

(a) statement concerning a startling event; and

(b) made while declarant is still under stress from startling event

Question 20

When is a present sense impression (803 hearsay exception) admissible?

Answer 20

Description of event (a) while it is occurring; or

(b) immediately after.

Question 21

When is then-existing state of mind or physical condition (803 hearsay exception) admissible?

Answer 21

Statement about declarant’s own then-existing state of mind, feelings, or physical condition.

State of mind includes declarant’s intent to do something in the future (including to engage in conduct with another)

Question 22

When is statement made for purpose of medical diagnosis or treatment (803 hearsay exception) admissible?

Answer 22

statement made to anyone about past or present symptoms or general cause of condition

BUT, can’t point blame (e.g. Admissible if declarant said “I have headaches because I was punched” but not if said “I have headaches because D negligently punched me”)

Question 23

When are business records (803 hearsay exception) admissible?

Answer 23

Elements:

Records of any type of biz or org (incl. nonprofits)

Made in regular course of business

made at or near time of the event recorded

consists of info observed by employees (if an outsider, need independent hearsay exception)

business regularly keeps such records

Question 24

How do you prove business records elements?

Answer 24

(a) call sponsoring witness (either author of records or person knowledgable of them) to testify to above elements; or
(b) affidavit or unsworn declaration attesting to above elements

Question 25

When are public records of a public office or agency (803 hearsay exception) admissible?

Answer 25

Records must set forth either:

(a) activities of the office or agency (e.g. payroll records)
(b) matters observed pursuant to a duty imposed by law (e.g. Weather Bureau record of temperature); or
(c) findings of fact/opinion resulting from investigation authorized by law.

Exception: police reports and investigatory findings not admissible against D in criminal cases (also can’t use biz records exception as a loophole)

Question 26

What are the Confrontation Clause issues as they pertain to hearsay statements in criminal cases?

Answer 26

Hearsay will not be admitted (even if an exception applies) if:

(a) statement is offered against criminal defendant,
(b) declarant is unavailable
(c) statement is testimonial in nature (e.g. to aid in ongoing emergency = non testimonial, to establish or prove events for later prosecution = testimonial
(d) the accused had no opportunity to cross-examine the declarant’s statement before trial

Question 27

What is the catch-all exception for hearsay?

Answer 27

1. hearsay statement must have sufficient guarantee of trustworthiness
2. statement must be necessary to determine a fact that could otherwise not be determined
3. proponent must give reasonable notice to opposing party of their intent to offer the hearsay,