Hearsay

Question 1

Nonhearsay Statements

FRE 801(d)

Answer 1

Out-of-court statement admissible if witness subject to cross-examination & prior statement:

Statement by declarant-witness

1) is inconsistent with current testimony & was made under penalty of perjury
2) is consistent with current testimony & offered to (1) rebut charge of fabrication/improper influence or (2) rehabilitate witness or
3) identifies person witness perceived earlier
* Out-of-court statement admissible if offered against opposing party & statement was:*

Statement by Party-Opponent

1) made or adopted by party
2) made by person authorized by party
3) made by party’s agent/employee on matter within scope of relationship or
4) made by party’s coconspirator during & in furtherance of conspiracy

Question 2

Nonhearsay

Statement by declarant-witness

Answer 2

An out-of-court statement is excluded from the hearsay rule (i.e., is nonhearsay) and admissible as substantive evidence if (1) the declarant testifies and is subject to cross-examination at trial and (2) the declarant’s statement satisfies any of the following criteria:

1) it is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
2) it is consistent with the declarant’s testimony and offered to (1) rebut an allegation that the declarant recently fabricated that testimony or has testified due to recent improper influence or (2) rehabilitate the declarant’s credibility when attacked on other grounds or
3) it identifies a person as someone the declarant perceived earlier.

A declarant’s prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay if the declarant testifies and is subject to cross-examination about the statement.

EXAMPLE: If the witness returned to her home country before trial, she is unavailable to testify and is not subject to cross-examination about her statement. Therefore, the statement is not admissible as nonhearsay. And if no other hearsay exclusion or exception applies, the court should not allow the statement into evidence.

Question 3

Previous out-of-court identification

Answer 3

A previous out-of-court identification of a person after perceiving that person is not hearsay and may be admissible as substantive evidence by the testimony of the declarant-witness.

Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification.

Question 4

Nonhearsay

Adoptive Admission

Answer 4

An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Fed. R. Evid. 801(d)(2)(B).

Silence in response to a statement is considered an adoptive admission if:

i) The person was present and heard and understood the statement;
ii) The person had the ability and opportunity to deny the statement; and
iii) A reasonable person similarly situated would have denied the statement.

Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person (e.g., a police o”cer). Doyle v. Ohio, 426 U.S. 610 (1976).

Question 5

Hearsay Exception

Business Records

Answer 5

Under this exception, business records are admissible if they are:

i) made at or near the time of the recorded event
ii) made by or based on information from someone with personal knowledge of the event and
iii) made and kept as a regular practice in the course of regularly conducted business activities.

However, this exception does not apply to records prepared in anticipation of litigation because they lack trustworthiness.

Question 6

Hearsay Exception

Public Records

Answer 6

“Under the hearsay exception for absent public records, testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.”

1. Existing public records (FRE 803(8))

Records or statements of public office/agency admissible if they set forth:

i) activities of office or agency
ii) matters observed pursuant to legal duty (excluding police observations in criminal cases) OR
iii) factual findings from legal investigation if offered in civil case or against government in criminal case

2. Absence of public records (FRE 803(10))

Evidence that diligent search failed to locate public record or statement admissible if:

i) introduced through testimony or self-authenticating evidence certified under FRE 902 AND
ii) in criminal cases, prosecutor gives written notice of intent to offer certification 14 days before trial & defendant does not object in writing within 7 days of receiving notice

Question 7

Present recollection refreshed v. Past recollection recorded

Answer 7

1. Refreshing recollection (FRE 612)

Any item may be used to refresh witness’s memory regardless of admissibility if:

i) witness once knew but is now unable to recall fact or event AND
ii) item will help witness recall that information
2. Recorded recollection (FRE 803(5))

Record is admissible hearsay and allowed to be *read into evidence* if it:

i) contains information witness once knew but cannot recall well enough to testify fully & accurately
ii) was made or adopted by witness when matter was fresh in his/her mind AND
iii) accurately reflects witness’s knowledge at time record was made

Question 8

Hearsay Exception

Past Recollection Recorded

Answer 8

The past recollection recorded hearsay exception allows a record to be read into evidence if it:

(1) concerns a matter that a witness once knew but cannot recall at trial,
(2) was made or adopted by the witness when the matter was fresh in his/her mind, and
(3) accurately reflects the witness’s personal knowledge at the time it was made.

Before invoking this exception, the party should attempt to refresh the witness’s memory under FRE 612.

If the witness still cannot sufficiently recall the events recorded, the past recorded recollection may be utilized.

However, only the party opposing the use of the record may introduce it as an exhibit.

Question 9

Hearsay Exception

Former Testimony

Answer 9

The former testimony exception allows an *unavailable declarant’s* former testimony to be admitted if:

i) the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding that involved similar parties and issues AND
ii) the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.

***An affidavit does not fall under the former testimony exception because it is not given during a trial, hearing, or deposition and the other party has no opportunity to cross-examine the affiant.***

Question 10

Hearsay Exclusion

Prior inconsistent statement

Answer 10

“A prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible substantively.”

A prior inconsistent statement is a past statement that is contrary to a witness’s present testimony.

Such statements are subject to the rule against hearsay and—unless excluded or excepted from hearsay—cannot be offered as substantive evidence.

A prior inconsistent statement may be used to impeach a witness on a material issue even when it is not admissible substantively. A party may impeach the witness with the statement by:

i) examining the witness about the statement OR
ii) introducing the statement through extrinsic evidence if:
(1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement OR
(2) justice so requires.

Question 11

Hearsay Exception

Statement Against Interest

Answer 11

The statement against interest exception applies to hearsay statements that:

(1) are contrary to an unavailable declarant’s proprietary or pecuniary interest,
(2) tend to invalidate the declarant’s claim against someone else, OR
(3) expose the declarant to civil or criminal liability.

Question 12

Hearsay Exception

Dying Declaration

Answer 12

The “dying declaration” exception applies to statements that

(1) were made while an unavailable declarant believed his/her death was imminent AND
(2) concerned the circumstances of that impending death.

Question 13

Hearsay Exception

Excited Utterance

Answer 13

The “excited utterance” exception applies to statements that

(1) relate to a startling event or condition AND
(2) were made while the declarant was still under the stress of excitement caused by that event or condition.

Question 14

Hearsay Exception

Then-existing state of mind

Answer 14

The “then-existing state of mind” exception applies to statements about the declarant’s motive, intent, or plan.

But this exception does not apply to mere statements of memory or belief—e.g., the nephew’s recounting of taking the woman’s car—unless they relate to the declarant’s will.

Question 15

A prior inconsistent statement is admissible nonhearsay if:

Answer 15

A prior inconsistent statement is admissible nonhearsay if:

(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding AND
(2) the declarant testifies and is subject to cross-examination.

****It can also be introduced extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement.****

Question 16

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to…

Answer 16

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to

(1) have the writing produced for inspection,
(2) cross-examine the witness about the writing, and
(3) introduce into evidence any portion of the writing that relates to the witness’s testimony.

Question 17

Is evidence that a party was (or was not) covered by liability insurance admissible as substantive prrof of negligence or wrongdoing?

Answer 17

NO.

Under FRE 411, evidence that a party was (or was not) covered by liability insurance is not admissible as substantive proof of negligence or wrongdoing.*

• *However, evidence of liability insurance is admissible for nonsubstantive purposes (e.g., to impeach a witness).

This is true even if the evidence is in the form of the party’s own statement.

FRE 411 helps to ensure that the jury will not infer fault based on the existence of coverage or base its verdict on the party’s or insurer’s ability to pay.

Question 18

Can a witness use the item that refreshed their recollection to testify?

Answer 18

NO.

The witness may not use the item to testify but must do so from his/her refreshed memory. As a result, the item need not be independently admissible to be used for this purpose

Question 19

Refresh recollection

Answer 19

Any item (e.g., a writing, photograph) may be used to refresh a witness’s memory when:

(1) the witness once had personal knowledge of a matter but is now unable to recall it AND
(2) the item will help the witness recall that matter.

Question 20

Hearsay

Statements offered for some other purpose

Answer 20

The hearsay rule bars out-of-court statements that are offered to prove the truth of the matter asserted therein, but not those that are offered for some other purpose—e.g., to illustrate the declarant’s world view or belief system.

Question 21

Hearsay Exception

then-existing state of mind

Answer 21

Statements concerning the declarant’s then-existing state of mind (e.g., statements of motive, intent, or plan) are excepted from the rule against hearsay.

Question 22

Hearsay Exception

Former Testimony

Answer 22

One exception to the hearsay rule permits the admission of an unavailable declarant’s former testimony if:

i) that testimony was given at a trial, hearing, or deposition in the current case or a different proceeding AND
ii) the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.

Question 23

Hearsay

what is a statement?

Answer 23

The rule against hearsay bars the admission of out-of-court statements offered to prove the truth of the matter asserted therein unless excluded or excepted from the rule.

A statement is defined as a person’s (1) oral or written assertion or (2) nonverbal conduct that was intended as an assertion.

Question 24

Under the recorded recollection exception to hearsay, can a recording be played to the jury without being admitted as an exhibit?

Answer 24

YES.

Example: Here, the witness no longer remembers the license plate number, even though she knew it at one time and the record was made when the information was fresh in her memory.

• Accordingly, the recording would be admissible under this hearsay exception.

Note that the recording could be played for the court to hear, but would not actually be admitted as an exhibit unless the defense decided to do so.

Question 25

Does a civil judgment constitute hearsay?

Answer 25

YES.

A civil judgment, unlike a criminal judgment, constitutes hearsay that is not admissible under an exception to the hearsay rule.

Question 26

Statement of a party opponent

Does it need to have been against the party’s interest at the time it was made?

Answer 26

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.

Unlike with the statement against interest hearsay exception, an opposing party’s statement need not have been against the party’s interest at the time that it was made.

Question 27

To refresh recollection, can a witness examine an item even if the witness did not create the item?

Answer 27

YES.

To refresh recollection, the witness may examine any item, even if the witness did not create the item.

A witness may examine any item (e.g., writing, photograph) to refresh the witness’s present recollection.

The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document).

Question 28

Refreshed and recorded recollections distinguished:

Answer 28

Refreshed and recorded recollections distinguished:

• The item used to refresh a witness’s present recollection is generally not admitted into evidence, but a document introduced under the recorded recollection hearsay exception may be.

Question 29

Hearsay Exception

Present Sense Impression

Answer 29

A statement describing or explaining an event that is made while the declarant is perceiving the event, or immediately thereafter, is admissible under the present sense impression exception to the hearsay rule, regardless of whether the declarant is available to testify.

Question 30

Non-hearsay

What are the three types of Vicarious statements?

Answer 30

1. Employee or agent
2. Authorized speaker
3. Co-conspirators

Question 31

Non-hearsay

• Vicarious Statements*
• Employee / Agent*

Answer 31

A statement made by one person may be imputed to another based on the relationship between them. In determining whether a statement constitutes an opposing party’s statement, the statement is considered, but the statement itself cannot establish the necessary relationship between the parties.

Employee / Agent:

• A statement made by a party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship. Fed. R. Evid. 801(d)(2)(D).

Example:

• Here, the truck driver’s statement about the employer failing to fix the brakes that failed and resulted in the driver crashing through the storefront is a vicarious admission because it is a statement (i) made by an agent or employee of the company during the course of the employment relationship and (ii) it concerned a matter within the scope of the truck driver’s employment.

Question 32

Non-hearsay

What are all the non-hearsay exclusions?

Answer 32

1. Declarant-Witness’s Prior Statements
   a. prior inconsistent statements
   b. prior consistent statements
   c. prior statement of identification
2. Opposing party’s statement
   a. Judicial Admission
   b. Adoptive Admission
   c. Vicarious Statements

Question 33

A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if:

Answer 33

(i) an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and
(ii) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.

If admitted, the statement is read into evidence, but the publication itself _may not be_ received as an exhibit.

Question 34

Declarant’s Availability Immaterial

• public records*
• absence of a record*

Answer 34

Testimony or a certification by a public offcial that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if the public office regularly kept a record of statements for a matter of that kind.

****In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing.****

Question 35

Declarant’s Availability Immaterial

Learned Treatise

Answer 35

A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if:

i) An expert witness relied on the statement during direct examination OR it was called to the expert’s attention on cross-examination; and
ii) The publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.

If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit. Fed. R. Evid. 803(18).

***Although the treatise must be established as a reliable authority in order for a passage from the treatise to be read into evidence, there is no requirement that the expert who establishes the treatise as a reliable authority rely on the passage in forming her own opinion.***

Question 36

Hearsay Exception

Statement made for medical diagnosis or treatment

Answer 36

Although an out-of-court statement made for its truth is hearsay, an out-of-court statement describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical diagnosis or treatment.

• A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment.

The statement need not be made to a physician to fall under this exception. Statements to other medical personnel, including hospital attendants and ambulance drivers, or even to family members, may be included.

Question 37

Can a statement made by a party in a pleading filed in another action be admissible against the party in the current action as an opposing party’s statement?

Answer 37

YES

Example: Bankruptcy petition filed and withdrawn by defendant in a criminal defrauding case can be used as an opposing party’s statement.