Hearsay

Question 1

What is the Hearsay definition?

Answer 1

“Hearsay” = a statement by a human declarant, other than one made while testifying at trial, offered to prove the truth of the matter asserted

A statement must be by a human declarant, not one made by an animal or machine
i) Examples: Alarm clock; radar measuring speed of car; time/temperature display

Question 2

Hearsay: A statement is either:

Answer 2

i) An intentional oral or written assertion; or
ii) Intentionally assertive conduct
(1) Assertive conduct = conduct intended to communicate as a substitute for words
(a) Examples: Pointing a finger to give directions; shaking one’s head yes or no; a sketch by a police artist
(2) Non-assertive conduct = conduct not intended as a statement, not intended to communicate (thus, it is not hearsay)
(a) Example: Videotape showing D’s demeanor, drunk or stumbling

Question 3

Evidence NOT offered for its TRUTH (non-hearsay)

C E.L.V.I.S

Answer 3

C: Statement of Capacity to see, hear, speak, etc.

E: Effect on the listener (motive, intent, actions, etc.)

L: Legally operative facts

V: Verbal Acts

I: Impeachment

S: State of mind

Question 4

Hearsay Exemptions: Statement by a Party Opponent

Statement by a named party

Answer 4

(1) A statement of a party offered against him by his opponent
(a) Can be a statement of fact or opinion
(b) Does not have to be against interest when made
(c) Personal knowledge not required; just required to be said BY the declarant and used AGAINST the declarant

(2) Examples
(a) Civil: a witness testifies, “After an accident, the D said, ‘I was speeding,’” used at plaintiff’s personal injury trial
(b) Criminal: a witness testifies that while awaiting arraignment, the D was asked what he was in for, to which D stated, “I shot my neighbor for asking too many questions”

Question 5

Hearsay Exemptions: Statement by a Party Opponent

Adoptive admission

Answer 5

There must be evidence sufficient to show that the party heard and understood the statement and adopted it as their own

Question 6

Hearsay Exemptions: Statement by a Party Opponent

Authorized Admission

Answer 6

A statement by a party’s agent or representative (agency can be express or implied)

Question 7

Hearsay Exemptions: Statement by a Party Opponent

Employee Admission

Answer 7

(1) A statement of a party’s employee offered against the party
(2) Rule—The statement must:
(a) be made during the existence of the employment relationship; and
(b) concern a matter within the scope of employment

Question 8

Hearsay Exemptions: Statement by a Party Opponent

Co-Conspirator’s statements

Answer 8

(1) Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators
(2) Requirements:
(a) the declarant was a member of the conspiracy;
(b) the statement was made “in furtherance of” the conspiracy (i.e., moved the criminal conspiracy forward); and
(c) the statement was made “during the existence of” the conspiracy

Question 9

Hearsay Exemptions List

Answer 9

a) Statement by a Party Opponent
i) Statement by a named party
ii) Adoptive admission (by words, conduct, or silence)
iii) Authorized admission
iv) Employee admission
v) Co-Conspirator’s Statements

b) Prior Statements (in Civil and Criminal Cases)
i) Prior Inconsistent Statement (PINS)
ii) Prior Consistent Statement (PCS)
iii) Statements of Prior Identification (PID)

Question 10

Hearsay Exemptions: Prior Statements (in Civil and Criminal Cases) Generally

Answer 10

i) There are three types of prior statements, and each requires:
(1) the declarant to testify at the trial or hearing;
(2) the declarant to be subject to cross-examination concerning the statement; and
(3) the statement must be either:
(a) prior inconsistent statement (offered for its truth);
(b) prior consistent statement; or
(c) statement of prior identification

Question 11

Hearsay Exemptions: Prior Statements (in Civil and Criminal Cases)

PINS

Answer 11

A PINS is permitted to be offered for its truth if it is “sworn” (i.e., subject to penalty of perjury (under oath) at a trial, deposition, or other proceeding)

Question 12

Hearsay Exemptions: Prior Statements (in Civil and Criminal Cases)

PCS

Answer 12

Once a witness has been impeached, a PCS is a hearsay exemption and admissible as substantive evidence

No requirement this be made under oath

Question 13

Hearsay Exemptions: Prior Statements (in Civil and Criminal Cases)

PID

Answer 13

An out-of-court statement of identification by a declarant made after perceiving the identified person is admissible as substantive evidence

Question 14

Hearsay Exceptions List

Availability of Declarant Immaterial

Answer 14

i) Present Sense Impression
ii) Excited Utterance
iii) Then-Existing Mental, Physical, or Emotional Condition
iii) Statements for Purposes of Medical Diagnosis or Treatment
iv) Past Recollection Recorded
v) Records of Regularly Conducted Activity (Business Records Exception)
vi) Public Records and Reports
vii) Statements in Ancient Documents
viii) Learned Treatises

Question 15

Final Note

Answer 15

for all three PINS, PCS, and PID as substantive evidence, the declarant must testify at trial and be subject to CX about the statement; otherwise, it offered for its truth, the statement is hearsay; also a confrontation clause problem arises in a criminal case

Question 16

Hearsay Exceptions List

Availability of Declarant Material

Answer 16

ii) Former Testimony
iii) Statement Made in Belief of Impending Death (Dying Declaration)
iv) Statements Against Interest

Question 17

Hearsay Exceptions: Availability of Declarant Immaterial

Present Sense Impression

Answer 17

(1) A statement describing or explaining an event/condition made while or immediately after perceiving it
(a) Characteristics and requirements:
(i) Spontaneity (timing)
(ii) Declarant need not be known or available
(iii) An unexcited utterance
(iv) Can be oral or in writing

“they’re sayin’ it as they’re seein’ it”

Question 18

Hearsay Exceptions: Availability of Declarant Immaterial

Excited Utterance

Answer 18

(1) A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event or condition
(a) Characteristics and requirements:
(i) a startling event;
(ii) personal knowledge required; and
(iii) statement made while still stressed by event - need not be immediate (unlike present sense impression)

Question 19

Hearsay Exceptions: Availability of Declarant Immaterial

Then-Existing Mental, Physical, or Emotional Condition

Answer 19

(1) A statement of declarant’s then-existing physical, emotional, or mental condition is admissible if relevant to show declarant’s state of mind
(a) Statement need not be made to a medical person
(b) Look for prospective statements of intent (forward-looking)

(2) This exception does NOT include:
(a) Past sensations
(b) Statements of memory or belief, generally

Question 20

Hearsay Exceptions: Availability of Declarant Immaterial

Statements for Purposes of Medical Diagnosis or Treatment

Answer 20

(1) Includes statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation, or the cause
(a) Statement can be made to any medical personnel or family member
(b) Statement must be one that is useful for diagnosis and treatment

(2) NOT included: statement admitting or assessing fault (i.e., “I was hit from behind”
= admissible; “I was hit from behind by a person in a blue car” = inadmissible)

Question 21

Hearsay Exceptions: Availability of Declarant Immaterial

Past Recollection Recorded

Answer 21

(1) Used where the witness lacks current memory of the event
(a) Prerequisite: Must have attempted (and failed) to refresh the witness by a leading question or writing (Rule 612)
(2) Requirements:
(a) Writing/record is read into evidence
(i) The writing itself is NOT received as an exhibit unless offered by the adverse party
(b) The memorandum must have been made “while the matter was fresh” in the witness’s mind
(c) Authentication—the witness must testify that the writing accurately reflects the witness’s prior knowledge (i.e., witness made or adopted the statement)
(3) Rights of the adverse party:
(a) inspect the writing;
(b) cross-examine with it;
(c) show it to the jury for comparison; and
(d) introduce relevant portions into evidence

Key point= the writing/record is read into evidence. the writing itself is NOT received as an exhibit (to be with the jury during deliberations) unless offered by the adverse party

Question 22

Hearsay Exceptions: Availability of Declarant Immaterial

Records of Regularly Conducted Activity (Business Records Exception)

Answer 22

A record/report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such a record or report

Question 23

Hearsay Exceptions: Availability of Declarant Immaterial

Public Records and Reports

Answer 23

(1) Similar foundation as business records
(2) A record or statement of a public office is admissible if it sets out a matter personally observed which the person is under a legal duty to investigate and report
(a) the report of law enforcement is NOT admissible under this exception in a criminal case against the accused (Confrontation Clause problems)

Question 24

Hearsay Exceptions: Availability of Declarant Immaterial

Statements in Ancient Documents

Answer 24

(1) Admissible if found in a place where these items are typically found (i.e., archives, library, possibly a shoebox)
(a) Includes statements in a document that are in existence before January 1, 1998 and its authenticity is established

Question 25

Hearsay Exceptions: Availability of Declarant Immaterial

Learned Treatises

Answer 25

(1) Foundation authoritativeness established by: judicial notice; expert testimony; or stipulation
(a) Subject area: MASH (Medicine, Art, Science, History)
(2) The treatise is read to the jury, not physically given to the jury

Question 26

Hearsay Exceptions: Availability of Declarant Material

“Unavailable” triggering events- PRISM

Answer 26

“Unavailable” triggering events—PRISM

Privilege: Asserting a privilege

Refusal: Refusing to testify despite a court order

Incapability: Incapacity due to death or then-existing physical or mental illness

Subpoena: Absence of a witness despite a good-faith attempt to procure witness’s attendance (i.e., subpoena)

Memory: Witness testifies as to a lack of memory
(a) Burden to prove unavailability is on the proponent of the testimony

Question 27

Hearsay Exceptions: Availability of Declarant Material

Former Testimony

Answer 27

(1) May be admitted for its truth if:
(a) declarant made the statement under oath;
(b) given by a witness in the same or a different but related proceeding, or in a deposition; and
(i) The former action must involve the same subject matter, but not necessarily the same cause of action or plaintiff
(c) the party against whom the evidence is being offered must have had an opportunity and similar motive to examine the witness and develop the testimony on direct, cross- examination, or redirect

Question 28

Hearsay Exceptions: Availability of Declarant Material

Statement Made in Belief of Impending Death (Dying Declaration)

Answer 28

(1) Made about the cause of death; unavailable declarant; belief of death; admissible in any civil case or a criminal case if charge is homicide
(2) Judge determines whether the declarant subjectively believed death was imminent
(a) The declarant need not have died from the incident, but the declarant must be unavailable to testify

Question 29

Hearsay Exceptions: Availability of Declarant Material

Statements Against Interest

Answer 29

Requirements:

(a) Personal knowledge
(b) Unavailable witness
(c) Non-party (generally)
(d) Statement was against interest when made (i.e., pecuniary (money), proprietary (property), penal (jail))

Question 30

Confrontation Clause

Answer 30

i) Rule: In a criminal case where the declarant is unavailable, “testimonial” hearsay statements will be inadmissible unless D is given an opportunity to cross-examine the declarant
(1) “Testimonial hearsay” is a hearsay statement about past events that the declarant reasonably expected would be used in a subsequent prosecution. Typically made to police or government employee, or made in a “formal” settling (courtroom or deposition)

Question 31

Confrontation Clause Exceptions

Answer 31

(2) Exceptions: When testimonial hearsay is admissible even if declarant is not unavailable or D did not have a chance to cross-examine
(a) Dying declarations
(b) Child witness testifying via close circuit
(c) Statement is to aid police during an ongoing emergency
(d) Chemical analysis report with “notice and demand” statute
(e) Forfeiture by wrongdoing (D caused the unavailability to prevent declarant from testifying)

Question 32

Hearsay within Hearsay

Answer 32

Each statement must have a separate basis for admissibility; otherwise, the entire statement is inadmissible