Hearsay Flashcards
Define hearsay
An out of court statement of a person (either written or oral) offered for the truth of the matter asserted
What are the 3 types of statements that are not hearsay?
- Verbal acts (legally operative words)
- Effect on the listener
- State of Mind
What are the two types of statutory non-hearsay? **
- Prior Statements of Trial Witnesses
- Statements by a Party-Opponent
NY - These are exceptions, not exclusions
When does an out of court statement constitute a verbal act?
When the words have independent legal significance. The statement is offered to show the legal effect of the words.
Examples
- Yelling “fire” in a movie theater - illegal
- “I accept your offer” - creates K
When may an out of court statement be offered for effect on the listener?
When the statement is relevant to show the impact it had on the person who read / heard it. It is not offered for the truth, but to show that it evoked fear, created a motive, or put someone on notice.
When may an out of court statement be offered to show the speaker’s state of mind?
Examples:
- A says “I’m Elvis” - to prove he’s crazy
- A’s false alibi offered to show guilty conscience
- Questions asked to show lack of knowledge
What are the three types of prior statements of witnesses that are non-hearsay under the Federal Rules?
- Prior statement identifying a person
- Prior oral inconsistent statement under oath
- Prior consistent statement for rehabilitation
How are the non-hearsay prior statements of a testifying witness treated in NY?
- They are exceptions, not non-hearsay
- Prior inconsistent statements can be used only to impeach
- Prior consistent statement can be used only to rehabilitate a witness
What is a statement by a party-opponent?
A statement made by the opposing party that is admissible for its truth if offered against the opposing party (comes in as substantive evidence)
How is a statement by a party-opponent treated differently between NY and the FRE?
FRE - Exclusion (it’s not hearsay)
NY - Hearsay subject to an exception
Does a statement by a party-opponent have to be against the party’s interest when made?
No. It can be self-serving.
Does the party-opponent have to be the one making the statement?
No. If the party-opponent is silent when a reasonable person would protest, he has adopted the statement.
Does the statement of a party-opponent exclusion/exception apply to vicarious party admissions? **
Yes, if the statement is made by and employee/agent and:
- Statement is within scope of agency / employment; and
- Statement is made during agency / employment relationship (look for someone getting fired or quitting)
NY - Agent / Employee must have authority to speak on the matter (limitation on federal rule)
Are statements of a co-conspirator admissible under the party-opponent exclusion / exception?
Yes, they are admissible against a party who is a member of the conspiracy if the statement:
- Was made during the conspiracy; and
- In furtherance of the conspiracy
What are the four hearsay exceptions that require the declarant be unavailable?
- Dying declarations
- Statement against party interest
- Former testimony
- Forfeiture by wrongdoing
What is a criminal defendant’s right of confrontation?
The Sixth Amendment requires that a defendant have the opportunity to cross-examine the witnesses against him.
When does a hearsay statement subject to an exception violate the confrontation clause?
- Statement is testimonial
- Declarant is unavailable; and
- Defendant had no opportunity to cross-examine the witness
When is a statement considered testimonial?
Look for formality / created for the purpose of generating evidence for prosecution.
- Grand jury testimony
- Sworn affidavits
- Statements to police during interrogation
- Forensic lab reports created to accuse a targeted individual
What is the ongoing emergency exception for testimonial statements?
When a statement is made to the police to help them meet an ongoing emergency, the statement is not considered testimonial.
When do forensic lab reports not violate the confrontation clause?
When there is no targeted individual. In this case, they are not testimonial.
What is the forfeiture exception to hearsay and confrontation? **
A defendant can’t take advantage of hearsay or a confrontation issue if the court finds:
- By preponderance of the evidence (MBE); or
- By clear and convincing evidence (NY) that
- D’s conduct was specifically designed to prevent the declarant from testifying
When is testimonial evidence admissible despite witness unavailability?
- Forfeiture by Defendant
- D had prior opportunity and motive to cross-examine (must be essentially same issue)
Note: No x-exam in grand jury proceedings, so that will never be admitted against D under option 2, but can be admitted against prosecution.
What are the grounds for witness unavailability? **
- Privilege
- Absence from the jurisdiction
- Illness / Death
- Lack of memory
- Stubborn refusal to testify
- Declarant located 100+ miles from courthouse **
- Declarant is physician **
When a witness is unavailable on the exam, what should you look for?
Look to see if any of the unavailability exceptions will apply to that witnesses statements.
What is a statement against interest?
Any statement against the declarant’s pecuniary, proprietary, or penal interest.
When is a statement against interest admissible for its truth?
- Statement is against interest when made
- Made by any person (not just a party)
- The declarant had personal knowledge
- The declarant must be unavailable
What is the additional requirement for statements against penal interest in criminal cases?
There must be corroborating evidence that suggest the statement is trustworthy
Why are statements against interest excepted from the hearsay rule?
They are trustworthy because a person wouldn’t make a statement against their pecuniary, proprietary, or penal interest if it were not true.
What is a dying declaration?
A statement made while the declarant reasonably believes impending death is certain, the statement is about the cause of death, and the declarant is unavailable.
When may a dying declaration be admitted in a criminal case?
Only for homicide cases (i.e., the declarant must have actually died)
When may a dying declaration be used in a civil case? **
MBE - Any kind of civil case
NY - No civil cases, homicide only
Declarant need not die in for civil cases, simply unavailable (coma, etc)
What is an excited utterance?
A statement about a startling event made while the declarant is still under the stress or excitement resulting from the event
Must a declarant be unavailable to admit an excited utterance?
No
What factors are considered in determining whether a statement is an excited utterance?
- Nature of the event (how exciting / traumatic)
- How much time as passed
- Visual clues in the fact pattern (exclamatory phrases, excitement oriented verbs)
What is a present sense impression? **
A description of an event while it is happening or extremely soon thereafter (seconds, not minutes)
NY - requires corroborative evidence
When does a statement concern the declarant present state of mind?
When it describes the declarant’s feelings, emotions, or thoughts
Declarant has unique knowledge of what is in their own head
Must a declarant be unavailable to admit a present sense impression?
No
Must a declarant be unavailable to admit a statement of present state of mind?
No
For what purpose is a declaration of intent admissible? (Hillmon Doctrine)
To show the declarant acted in accordance with his intent.
Example: “I’m going to meet Joe” can be offered to show that the declarant went to meet Joe.
“I’m going to meet A in the McDonald’s parking lot.”
Can this statement be offered to show A went to the parking lot? **
MBE - No.
NY - Must have the following:
- Corroborative evidence that A went there
- Evidence of a relationship with A
- Declarant must be unavailable
What is a statement of present physical condition? **
A statement to anyone (not just a doctor) about the declarant’s present physical condition.
Example:
“My arm hurts”
NY - If made to a layperson, the declarant must be unavailable.
What is a statement made for the purpose of receiving medical treatment or a diagnosis?
A statement to anyone (though usually a doctor) concerning the declarant’s:
- Present symptoms
- Past symptoms; or
- General cause of declarant’s injuries
What qualifies for admission under the exception for statements made for medical purposes?
Only that which is medically relevant. Anything else is excluded.
It does not apply to statements made to a physician for the sole purpose of having them testify as an expert at trial.
What is considered a business record under the business records exception?
- A record of a business of any type;
- Made the in regular course of business (duty);
- The business regularly keeps such records;
- Made at or about the time of the recorded event;
- Contents consist of either (i) info observed by employees of the business or (ii) a statement that falls within an independent hearsay exception
Are police reports business records?
Yes, and any recorded observations by the officer taken in the scope of their employment are admissible. However, if a layperson gives a statement, it is not admissible unless it fits into an independent hearsay exception / exclusion.
A has a car collision with B. 1 hour later, Officer C arrives. Officer C notes the length of the tire marks on the street and the condition of both cars. W, a bystander, tells Officer C that A ran a red light and collided with B. All this information is included in Officer C’s report. Which portions of the report, if any, are admissible?
Admissible:
- Length of tire tracks (personal knowledge / duty)
- Condition of the cars (same)
Inadmissible:
1. Bystander statement. Officer C has no personal knowledge and the statement doesn’t fit into any other hearsay exception.
How are business records proven? **
- A witness with personal knowledge is called to testify to the five elements; or
- Written certification under oath attesting to the elements (Limits in NY)
What are the only times business records may be proven by certification in NY?
- Civil case - Only business records of a non-party may be proved through certification if the records were produced for inspection during pretrial discovery
- Any case - Hospital / State or local gov’t records
What is considered a public record under the public records exception? **
Records of a public office that set forth:
- Activities of the office / agency
- Matters observed pursuant to a legal duty
- Findings of fact / opinion resulting from a legally authorized investigation (even if data came from outside sources)
NY - This exception not well established, so try the public records exception first
What public records are not included in the hearsay exception?
Police reports prepared for prosecutorial use
What is double hearsay?
When a hearsay statement is included within another hearsay statement
Example: police report that includes an excited utterance
Are double hearsay statements admissible?
Only if both statements are independently admissible under a hearsay exception / exclusion
How are hearsay declarants impeached?
In the same way a testifying witness is impeached (even if the declarant is absent)
Example:
Call a witness to testify that declarant has bad character for truthfulness
Note: Usual rules for prior inconsistent statements are waived for impeachment purposes
