Exclusion of Hearsay Evidence - The Hearsay Rule Flashcards
Rationale for Hearsay Rules
- There are concerns about the jury’s ability to appreciate the defects in how the evidence was generated, because there is a limited ability to demonstrate faulty perception, faulty memory, faulty communication and insincerity. This is a concern for formative reliability
- There is also a concern that the jury will over value the hearsay evidence. This is a concern about evaluative reliability.
Three-Step Analysis for Hearsay
- Is it Hearsay? (Rules 801, 802 and 805)
- Even though it appears to be hearsay, is it excluded from the definition of hearsay? (Rule 801(d))
- If it is hearsay, and if it is definitionally excluded, does it fall under one of the hearsay exceptions? (Rules 803, 804 and 805)
Declarant
The person who makes the statement
Auditor
The person who hears the declarant make the statement
Witness
The person who testifies on the stand about what the declarant said
Party
The side introducing the hearsay statement
FRE 602
Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient enough to support a finding that the witness has personal knowledge of the matter. (104(b) determination). Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703
Meaning of FRE 602 for the Declarant, Witness and Auditor
The declarant must have personal knowledge of the underlying events, and the witness and auditor must have personal knowledge of the declarant’s statements.
Exceptions to the Personal Knowledge Requirement
- Opposing party statements (801(d)(2))
- Statements of the declarant’s own personal and family history
FRE 801(c)
Hearsay
Hearsay means a statement that
- The declarant does not make while testifying at the current trial under oath and
- A party offers in evidence to prove the truth of the matter asserted in the statement
FRE 802
The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise
- A federal statute
- These rules or
- Other rules prescribed by the Supreme Court
FRE 805
Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule
Statements Made by Machines and Animals
Animals and machines cannot be declarants, therefore the hearsay rule doesn’t apply to them. Animals and data from machines can be evidence and their reliability is tested through expert testimony
FRE 801(a)
Statement
Statement means a person’s oral assertion, written assertion or non-verbal conduct, if the person intended it as an assertion
English Hearsay Rule
The hearsay rule as developed in England included all declarations because they all communicate some information
American Hearsay Rule
The American approach is to limit the hearsay rule to those declarations that are intended to communicate a particular message
Concerns About Unintended Communications
While unintended communications raise concerns about perception, memory and communication, they do not raise concerns about sincerity
Implied Assertions
Implied assertions are statements that are intended to implicitly communicate a message.
Implied Assertions
Silence
By default, silence is not a statement. However, if someone intends to communicate something via silence, it becomes a statement
Implied Assertions
Questions
- The British approach deems all questions hearsay
- In America, questions are not statements, unless they are intended to communicate something
Implied Assertions
Metaphors
The messages implied by metaphors are statements
Implied Assertions
Sarcasm
The messages underlying sarcastic statements are statements
Assertive Conduct
- Assertive conduct is conduct that communicates a message
- A person’s behavior can be a statement and if someone testifies about that behavior, it is hearsay
Types of Statements Not Offered for the Purpose of Proving the Truth of the Matter
- Statements offered to show the defendant spoke
- Statements offered to show the defendant’s state of mind
- Statements offered for the effect on the auditor
- Verbal acts
- Ledgers, inscriptions, etc.
- Statements offered for impeachment
Statements Offered to Show the Defendant Spoke
These show the defendant spoke, not that what he said was true
Statements Offered for the Defendant’s State of Mind
These show mens rea, not what she said was true
Statements Offered for the Effect on the Auditor
This shows how the defendant’s words made the auditor feel
Ex. Swatting – people call 911 as a prank and get the swat team to go to someone’s house. Introducing the 911 tapes would show the effect the statement had on the cops
Verbal Acts
Words with legal significance
Verbal Acts That Have Civil Consequences
- Torts – defamation, hostile work environment
- Status – marriage vows
- Contract Formation – offer, acceptance
- Property Rights – creation of trusts, giving of gifts, guaranteeing of debts
- Allocation of Property Rights
- Adverse Possession
Verbal Acts That Have Criminal Consequences
- False alarm
- Threats
- Imprisonment
- Bribery
- Impersonation
- Solicitation
- Perjury
Ledgers, Inscriptions, etc.
Words that are unique identifiers
