Hearsay 1 Flashcards
What is the definition of hearsay? (801)
An out of court statement other than one made by the declarant while testifying at trial offered to prove the truth of the matter asserted (TMA)
Who is a declarant?
The person making the statement; the out of court mouthpiece
What constitutes a statement?
- oral or written assertion intending communication OR
- assertive conduct
- non-verbal conduct intended as an assertion
Example of a nonverbal assertion
EXAMPLE: There is a bank robbery. A man runs from the bank into a bar and sits down onto a bar stool. Police ask the bartender if he has seen anyone in a blue windbreaker. The bartender points at the man on the bar stool, and the man jumps up and runs away. The bartender intends to communicate that the man he pointed to is the bank robber, but the jumping up and running away is not intended to indicate guilt.
NOTE - beware of the out of ct declarant appearing in court
EXAMPLE: A woman is involved in a car accident. When a police officer arrives, she tells him that she had the green light and the other driver drove through the red light. At trial, her attorney calls her to the stand to testify as to what she said to the police officer at the accident scene. Is her testimony admissible?
Her being available does not clear up the hearsay problem
What is assertive conduct?
- Conduct intended to communicate as a substitute for words:
- Example:
- pointing the finger
- shaking head yes or no
- drawing a picture of someone to identify
- Example:
What is non-assertive conduct?
- Not intended as a statement
- Not hearsay
- EXAMPLES:
- video tape showing Δ drunken demeanor
- Δ walking with a limb or unsteady gate
- Δ speaks w/slurred speech
Who can make a statement?
- Humans only
- NOT
- machines or animals
What is non-hearsay?
- Non-hearsay is evidence not offered for the truth
- Effect on the listener
- goes to notice or motive
- not worried about the declarant’s words but the ear of the person hearing it
- Verbal Acts
- Effect on the listener
Examples of effect on the listener?
EXAMPLE: Plaintiff slips in a store and sues. A witness overheard someone mentioning to the store manager that he should take care of the salad oil that spilled. Declarant’s statements would be admissible to show that the manager had notice of the dangerous condition.
EXAMPLE: Plaintiff injured in auto accident wants to introduce that moments before defendant lost control of his car, someone told him that his tire looked as if it was going to burst. Admissible? Yes, by saying not being offered for truth but effect on listener; goes to neg.
EXAMPLE: A defendant claiming self defense wants to use a statement that he was told that the victim wanted to kill him because he was sleeping with his girlfriend. The statement is not being offered to prove he wanted to kill him, or that he was cheating, rather to show that the defendant was reasonable in using self defense.
What are verbal acts?
- These are words that have:
- ILS: - independent legal significance
- LOF: - legally operative fatcs
- EXAMPLES:
- Truth irrelevant
- Fact they were uttered what looking to prove
- Transactional words: words of a K, Will, Deed
- Tortious words
- the actual words of defamation
- Just that you said the words give rise to P’s cause of action
What are exemptions to hearsay?
- Not hearsay
- Come in for their truth substantively
- INCLUDES:
- Statement (Admission) by Party Opponent
- Co-conspirator Statement
- Prior Statements
What are different types of statements by a pty opponenet?
- (1) Direct statement by a party
- (2) Adoptive admission—either by conduct or silence
- (3) Authorized admission
- (4) Vicarious admission
- (5) Admission by a co-conspirator
What are direct statements by a pty?
- it is a statement by a pty offered against you
- Characteristics:
- statement of fact or opinion
- does not have to be against interest when made
- personal knowledge not required
- just said by ME used AGAINST me
Examples of direct statements by a party
EXAMPLE: Joe likes ice cream. I tell Joe I hate ice cream, and also people who like ice cream. The statement is not against my interest when made. Later, I am charged with killing my neighbor and my alibi is that I was at an ice cream parlor when the shooting happened. Now, the earlier statement is relevant to break my alibi, and therefore admissible as a statement by party opponent when used against me.
(a) Civil: A witness testifies, “After an accident, the defendant said, “I was speeding,” used at plaintiff’s personal injury trial. Don’t forget: These could be excluded for public policy reasons under 408/409.
(b) Criminal: A witness testifies that while awaiting arraignment, the defendant was asked what he was in for, to which defendant stated, “I shot my neighbor for asking too many questions.”
What is an admission by silence?
- Requires:
- a reasonable person would have denied the statement
- (stolen watch vs. cheating husband)
- once pty adviced of right to remain silent:
- cannot comment on that and use against him
- a reasonable person would have denied the statement
What is an adoptive admission?
- must be evidence sufficient to show the pty heard AND understood the statement
- And adopted it as her own
Example of an adoptive admission
EXAMPLE: Police officer buys drugs from someone and then asks for more. The person says, “I don’t have any, but my friend does.” Another person goes over to a bag and starts to take something out of the bag. Result: Person has adopted the statement, “My friend has drugs,” by his conduct.
What is an authorized admission?
- statement by a pty’s agent or representative
- Agency can be expressed or implied
EXAMPLE: A Kaplan student representative offers a discounted course to a classmate. Kaplan must honor that offer as the student is an authorized agent. The statement is an authorized admission offered against Kaplan.
EXAMPLE: A principal authorizes agents or servants to make statements or representations to third parties.
What are employee/vicarious admissions?
- statement by the pty’s employee offered AGAINST the employer by the other pty
- Requires:
- statement must be made during the scope of employer/ee relationship AND
- concern a matter w/in scope of employment
Example of employee/vicarious admission
EXAMPLE: Employee is driving employer’s truck while making a delivery, and he has an accident with Plaintiff. Plaintiff sues employer for personal injury under theory of respondeat superior. Eyewitness (plaintiff witness) offers employee’s statement made at the scene: “Gee, I ran the red light.” Versus landscaper talking about business matters of the corporation.
What are co-conspirator statements?
- can us statements against all other co-conspirators
- does not matter if a conspiracy is charged
- does not matter if they are aware that a conspiracy exists
What are the requirements for a co-conspirator’s statement to be considered statement by pty opponent?
- Requires:
- Existence of conspiracy is a prelim fact that must be proven by a preponderence of the evidence
- whether declarant was a member of the conspiracy
- whether the statement was made in furtherance of the conspiracy
- whether the statement was made during the existence of the conspiracy
What are the types of prior statements?******
- Prior inconsistent statement (PINS)
- Prior consistent statement (PCS)
- Prior Identification (Prior ID)
What are the requirements for prior statements?
- Declarant must testify @ trial
- Declarant must be available & subject to cross
- The statement must be either:
- PINS
- PCS
- Prior ID
What is a prior inconsistent statement?
- Permitted to be offered for its truth substantively if it is said under oath/sworn
- b/c it is subject to penalty of perjury
- INCLUDES: grand jury testimony, depo, trial, prelim
- BUT NOT: affidavits
EXAMPLE: Domestic violence case revisited. The victim testifies at a preliminary hearing that her husband caused her injuries. Later, at trial she testifies her injuries were self inflicted due to negligence. The notes of testimony from the preliminary hearing are used to impeach but are admissible for their truth.
When can prior consistent statements be used?
- to rehabilitate a witness after an inference of recent fabrication
- must predate the motive to lie
- look @ a time before the fabrication where I say the exact same thing i said today
- to rehabilitate the declarant’s credibility who was attacked on other grounds
Example of prior inconsistent statement
EXAMPLE: A prior consistent statement can be used on redirect to rehabilitate a witness’s credibility that has been attacked on cross examination with an inconsistent statement. Today’s testimony was that the car was going 55 miles per hour. At the preliminary hearing, the witness stated the car was going 45 miles per hour. At the scene, the witness told the officer that the car was traveling 55 miles per hour. The on-the-scene statement would be admissible as a prior consistent statement. The preliminary hearing testimony would be used as a prior inconsistent statement.
What is a prior identification?
- where there is a formal/informal process of id of the person
- not just a description
- will be admissible
- id fresh in mind
Recap: 1. What is the definition of hearsay?
A out of court statement made by the declarant other than the one the declarant made at trial being offered for the truth of the matter asserted
Recap: 2. What is assertive conduct?
Conduct intended to communicate as a substitute for words
i.e. - pointing the finger
Recap: 3. Describe the five-step hearsay approach.
- Isolate the statement
- Determine who is the declarant
- Purpose for which the evidence is being offered
- for the truth - hearsay
- not for the truth - mot hearsay
- Apply the hearsay exceptions
Recap: 4. When is a prior consistent statement permitted?
- to rehabilitate a witness after an inference of fabrication
- To rehabilitate a declarant on other grounds, like a prior inconsistent statement
