Hearsay Flashcards
Hearsay
Hearsay means a statement that:
(1) The declarant does not make while testifying at the current trial or hearing; and
(2) A party offers into evidence to prove the truth of the matter asserted in the statement. 801(c).
Hearsay Process
(1) Did someone make a Statement?
(2) Who is the Declarant?
(3) What are they Asserting?
(4) Was the statement made Out-of-Court?
(5) What is the statement being Offered to Prove?
(6) Are there any Exceptions?
Statement
A statement is only something that a person intends as an assertion, such as oral, written, and non-verbal assertions.
Assertion
An Assertion is:
(1) A statement
(2) Intended
(3) To assert something
(4) To someone else
Hearsay within Hearsay
Hearsay within hearsay is admissible when:
(1) Each part
(2) Of the combined statements
(3) Has an applicable hearsay exception.
Non-Hearsay
Statements not considered hearsay:
(1) In-Court statements based on the declarant-witness’ Testimonial Capacities; or
(2) Certain Out-of-Court Statements that are generally reliable.
Non-Hearsay:
Testimonial Capacities
(1) Perception
(2) Memory
(3) Narrative
(4) Sincerity
Non-Hearsay:
Out-of-Court Statements
(1) Words offered to prove their Effect on the Listener;
(2) Legally Operative Words;
(3) Nonassertive/Reactionary Words;
(4) Inconsistent Statements used to Impeach; or
(5) Assertions offered as Circumstantial Proof of Knowledge.
Miranda & Silence
(1) To:
(a) Prove the defendant adopted an assertion; or
(b) To impeach a wishy washy witness;
(2) Silence may be used if the defendant was either:
(a) Not in custody; or
(b) In custody, had not been mirandized.
(3) If defendant had been Mirandized → Silence inadmissible
Hearsay Exceptions
(1) Opposing Parties Statements;
(2) Witness’ Prior Statements;
(3) Declarant Unavailable; and
(4) General Hearsay Exception.
Hearsay Exceptions:
Opposing Party’s Statements
(A) A Party’s Own Statement;
(B) Adopted Statements;
(C) Statements by Spokesperson;
(D) Statements by Agents/Employees; and
(E) Coconspirator’s Statements.
Hearsay Exceptions: Opposing Party’s Statements
A Party’s Own Statements
Hearsay is admissible when the following is satisfied:
(1) The statement was made by the party;
(2) In an individual or representative capacity;
(2) Offered against the party by the opposing party.
Hearsay Exceptions: Opposing Party’s Statements
Adopted Statements
Hearsay is admissible when the following is satisfied:
(1) Is the statement offered against the opposing party?
(2) Was there an assertion made?
(3) Did the party manifest adoption of the assertion?
(a) Did they Hear and understand the assertion?
(b) Did they have an opportunity to respond?
(c) Would a reasonable person in their shoes have rejected the assertion?
(d) Did they fail to reject the assertion?
Hearsay Exceptions: Opposing Party’s Statements
Statements by Spokesperson
Hearsay is admissible when the following is satisfied:
(1) Is the statement being offered against the opposing party?
(2) Was the statement made by a person authorized by the party to:
(a) Speak as the party’s spokesperson?
(b) On the specific subject?
Hearsay Exceptions: Opposing Party’s Statements
Statements by Agents
Hearsay is admissible when the following is satisfied:
(1) Is the statement being offered against the opposing party?
(2) Was the statement made by an agent or employee of the party
(a) On a matter within the scope of the relationship?
(b) While the relationship existed.
NOTE: Consider the statement, but the statement alone does not establish that there was actually a relationship.
Hearsay Exceptions: Opposing Party’s Statements
Coconspirator’s Statements
Hearsay is admissible when the following is satisfied:
(1) Is the statement being offered against the opposing party?
(2) Court must determine:
(a) Does a conspiracy exist?
(b) Are the party and the declarant both members of the conspiracy?
(3) Was the statement made:
(a) While the conspiracy existed; and
(b) In furtherance of the conspiracy?
NOTE: Consider the statement, but the statement alone does not establish that there was actually a relationship.
Hearsay Exceptions:
Witness’ Prior Statements
(A) Prior Inconsistent Statement;
(B) Prior Consistent Statement; and
(C) Statements of Identification.
Hearsay Exceptions: Witness’ Prior Statements
Prior Inconsistent Statement
Hearsay is admissible when the following is satisfied:
(1) Declarant previously:
(a) Testified at official proceeding; and
(b) Under penalty of perjury; and
(2) Declarant is currently:
(a) Testifying at official proceeding; and
(b) Subject to cross-examination about prior statement; and
(3) Declarant’s current statement is inconsistent with prior statement.
NOTE: An “Inconsistent” statement is one that contradicts and does not include not remembering.
Hearsay Exceptions: Witness’ Prior Statements
Prior Consistent Statement
Hearsay is admissible when the following is satisfied:
(1) Declarant is:
(a) Testifying; and
(b) Subject to cross-examination about prior statement; and
(2) The prior statement is offered to:
(a) Rebut an express or implied charge of:
(i) Recent fabrication; or
(ii) Acting from recent improper influence or improper motive; or
(b) Rehabilitate the declarant-witness’ credibility after it has been attacked.
Hearsay Exceptions: Witness’ Prior Statements
Statements of Identification
Hearsay is admissible when the following is satisfied:
(1) Declarant previously:
(a) Made a statement of identification that
(b) Identified a person the declarant perceived earlier;
(2) Declarant is currently:
(a) Testifying; and
(b) Subject to cross-examination about prior statement of identification;
(3) Regardless of whether the declarant currently remembers the identification.
NOTE: Includes classic lineups and composite/police sketches.
Hearsay Exceptions:
Declarant Unavailable
(1) Former Testimony;
(2) Dying Declaration;
(3) Statement Against Interest;
(4) Statements about Personal or Family History; and
(5) Forfeiture by Wrongdoing.
Declarant “Unavailable”
A declarant is unavailable when they:
(1) Are exempted due to privilege;
(2) Refuse to testify, despite a court order;
(3) Testify that they do not remember;
(4) Are dead or too sick to testify; or
(5) Are absent and the proponent is unable, by process or other reasonable means, to procure the declarant’s attendance or testimony.
Hearsay Exceptions: Declarant Unavailable
Former Testimony
Hearsay is admissible when the following is satisfied:
(1) Declarant is unavailable;
(2) Declarant previously gave testimony
(a) At a trial, hearing, or deposition;
(b) Whether given during the current proceeding or a different proceeding;
(3) The Former Testimony is currently being offered:
(a) Against a party (or predecessor in interest in a civil case);
(b) Who had an opportunity and similar motive
(c) To develop it by direct, cross-, or redirect examination.
Hearsay Exceptions: Declarant Unavailable
Dying Declaration
Hearsay is admissible when the following is satisfied:
(1) Declarant is unavailable (because dead);
(2) In a homicide or civil case;
(3) The statement:
(a) Pertains to the cause and circumstances of a declarant’s death; and
(b) Was made at a time when they had a Settled Hopeless Expectation, meaning:
(i) They had a reasonable belief that
(ii) Their death was imminent.
Hearsay Exceptions: Declarant Unavailable
Statements Against Interest
Hearsay is admissible when the following is satisfied:
(1) Declarant is unavailable (likely due to privilege);
(2) The statement was one that:
(a) A reasonable person;
(b) In the declarant’s position;
(c) Would only make if they believed it to be true;
(3) Because the statement:
(a) Was so contrary to their interest; or
(b) Had a substantial tendency to:
(i) Invalidate a claim; or
(ii) Expose them to civil or criminal liability; and
(4) In a criminal case, the statement
(a) Is supported by corroborating circumstances;
(b) That clearly indicate the statement’s trustworthiness.
NOTE: Non-self-incriminating statements made collateral to self-incriminating statement are generally not admissible, especially if they implicate someone else
Hearsay Exceptions: Declarant Unavailable
Statement About Personal or Family History
Hearsay is admissible when the following is satisfied:
(1) Declarant is unavailable;
(2) The statement is about:
(a) Declarant’s family/personal history (regardless of whether personal knowledge would be impossible); or
(b) Another Person related to or “like family” when circumstances show the statement is likely trustworthy.
Hearsay Exceptions: Declarant Unavailable
Forfeiture by Wrongdoing
Hearsay is admissible when the following is satisfied:
(1) Declarant is unavailable;
(2) The statement is offered against a party;
(3) That party wrongfully caused the declarant’s unavailability; and
(4) That party did so with the intent to make the declarant unavailable.
General Hearsay Exceptions
Generally admissible regardless of whether the declarant is available or not.
(1) Present Sense Impression;
(2) Excited Utterance;
(3) Then-Existing Mental, Emotional, or Physical Condition;
(4) Statement Made for Medical Diagnosis or Treatment;
(5) Records Recollection;
(6) Business Records;
(7) Public Records; and
(8) Police Reports.
General Hearsay Exceptions:
Present Sense Impression
A statement that:
(1) Describes or explains;
(2) An event or condition;
(3) During or immediately after the declarant perceived it.
General Hearsay Exceptions:
Excited Utterance
A statement:
(1) Related to an objectively startling event or condition;
(2) While the declarant was still subjectively, based on a preponderance of the evidence, under the stress of the event or condition.
General Hearsay Exceptions:
Then-Existing Mental, Emotional, or Physical Condition
A statement:
(1) Of the declarant’s then-existing;
(a) State of Mind; or
(b) Emotional, Sensory, or Physical Condition;
(2) Not including statements of memory or belief offered to prove the facts remembered or believed.
NOTE: Conditional statements of intent may be admissible
General Hearsay Exceptions:
Statement Made for Medical Diagnosis or Treatment
A statement:
(1) Made to either medical professionals or non-medical persons;
(2) Made for the purpose of and reasonably pertinent to medical diagnosis or treatment;
(3) Describing medical history, symptoms, causes, etc..
NOTE: Some courts don’t apply this exception to children too young to understand the importance of telling doctors the truth
General Hearsay Exceptions:
Records Recollection
A record:
(1) About a matter the witness once knew, but cannot now recall sufficiently to testify (and was “refreshed”);
(2) That was made or adopted by the witness while fresh in their memory;
(3) That is an accurate reflection of their knowledge at the time; and
(4) For which the witness has vouched for its accuracy.
NOTE: Technically, even though the witness is required to testify to the accuracy of the statement, the witness is still “unavailable” as a witness because they are unable to testify.
General Hearsay Exceptions:
Business Records
A record that:
(1) Was made timely and by someone with knowledge (not necessarily personal knowledge);
(2) Is kept in the course of a regularly conducted activity for the primary purpose of conducting business, such as one that is made:
(a) To record events or occurrences;
(b) To reflect transactions with others; or
(c) To provide internal controls;
(3) Shown by testimony of a custodian or other qualified witness; and
(4) There is no indication that it is untrustworthy.
OR
When there is no record, the fact that it is missing may be admissible if:
(1) It is admitted to prove that something did not occur;
(2) It is the type of record that is regularly kept; and
(3) There is no indication that it is untrustworthy.
NOTE: Non-employee statements are inherently untrustworthy.
General Hearsay Exceptions:
Public Records
A record or statement of a public office that sets out:
(1) The office’s activities;
(2) A matter observed while under a legal duty to report; or
(3) In a civil case or against the government in a criminal case, factual findings from a legal investigation; and
(4) There is no indication that it is untrustworthy.
OR
When there is no record or statement, the fact that it is missing may be admissible if:
(1) Someone offers testimony (or self-authenticating certification) that it cannot diligently be found;
(2) Its absence is admitted to prove
(a) That the record does not exist; or
(b) If the type of record regularly kept, that the matter did not occur; and
(3) In a criminal case:
(a) Prosecutor gives at least 14 days; notice; and
(b) Defendant does not object in writing within 7 days of receipt.
NOTE:“Factual Findings” includes opinions and conclusions based on facts
General Hearsay Exceptions:
Police Reports
Police report inadmissible as a public record → Prosecution will try to admit as business record.
