Exclusion of Hearsay Evidence - The Hearsay Rule

Question 1

Rationale for Hearsay Rules

Answer 1

• 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.

Question 2

Three-Step Analysis for Hearsay

Answer 2

1. Is it Hearsay? (Rules 801, 802 and 805)
2. Even though it appears to be hearsay, is it excluded from the definition of hearsay? (Rule 801(d))
3. If it is hearsay, and if it is definitionally excluded, does it fall under one of the hearsay exceptions? (Rules 803, 804 and 805)

Question 3

Declarant

Answer 3

The person who makes the statement

Question 4

Auditor

Answer 4

The person who hears the declarant make the statement

Question 5

Witness

Answer 5

The person who testifies on the stand about what the declarant said

Question 6

Party

Answer 6

The side introducing the hearsay statement

Question 7

FRE 602

Need for Personal Knowledge

Answer 7

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

Question 8

Meaning of FRE 602 for the Declarant, Witness and Auditor

Answer 8

The declarant must have personal knowledge of the underlying events, and the witness and auditor must have personal knowledge of the declarant’s statements.

Question 9

Exceptions to the Personal Knowledge Requirement

Answer 9

• Opposing party statements (801(d)(2))
• Statements of the declarant’s own personal and family history

Question 10

FRE 801(c)

Hearsay

Answer 10

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

Question 11

FRE 802
The Rule Against Hearsay

Answer 11

Hearsay is not admissible unless any of the following provides otherwise

• A federal statute
• These rules or
• Other rules prescribed by the Supreme Court

Question 12

FRE 805

Hearsay Within Hearsay

Answer 12

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

Question 13

Statements Made by Machines and Animals

Answer 13

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

Question 14

FRE 801(a)

Statement

Answer 14

Statement means a person’s oral assertion, written assertion or non-verbal conduct, if the person intended it as an assertion

Question 15

English Hearsay Rule

Answer 15

The hearsay rule as developed in England included all declarations because they all communicate some information

Question 16

American Hearsay Rule

Answer 16

The American approach is to limit the hearsay rule to those declarations that are intended to communicate a particular message

Question 17

Concerns About Unintended Communications

Answer 17

While unintended communications raise concerns about perception, memory and communication, they do not raise concerns about sincerity

Question 18

Implied Assertions

Answer 18

Implied assertions are statements that are intended to implicitly communicate a message.

Question 19

Implied Assertions

Silence

Answer 19

By default, silence is not a statement. However, if someone intends to communicate something via silence, it becomes a statement

Question 20

Implied Assertions

Questions

Answer 20

• The British approach deems all questions hearsay
• In America, questions are not statements, unless they are intended to communicate something

Question 21

Implied Assertions

Metaphors

Answer 21

The messages implied by metaphors are statements

Question 22

Implied Assertions

Sarcasm

Answer 22

The messages underlying sarcastic statements are statements

Question 23

Assertive Conduct

Answer 23

• 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

Question 24

Types of Statements Not Offered for the Purpose of Proving the Truth of the Matter

Answer 24

• 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

Question 25

Statements Offered to Show the Defendant Spoke

Answer 25

These show the defendant spoke, not that what he said was true

Question 26

Statements Offered for the Defendant’s State of Mind

Answer 26

These show mens rea, not what she said was true

Question 27

Statements Offered for the Effect on the Auditor

Answer 27

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

Question 28

Verbal Acts

Answer 28

Words with legal significance

Question 29

Verbal Acts That Have Civil Consequences

Answer 29

• 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

Question 30

Verbal Acts That Have Criminal Consequences

Answer 30

• False alarm
• Threats
• Imprisonment
• Bribery
• Impersonation
• Solicitation
• Perjury

Question 31

Ledgers, Inscriptions, etc.

Answer 31

Words that are unique identifiers