Hearsay

Question 1

Is information conveyed by animal or machine considered hearsay if offered to prove the truth of the matter asserted?

Answer 1

No.

Question 2

What are possible non-truth purposes (i.e., admissible purposes) for offering out of court statements?

Answer 2

(A) verbal acts (e.g. defamatory words, contract)
(B) to show effect on listener (fear, knowledge, motive)
(C) state of mind (insanity, knowledge)

Question 3

Difference between circumstantial evidence of state of mind (nonhearsay purpose) and direct statement re state of mind?

Answer 3

Indirect, circumstantial evidence is nonhearsay b/c not offered to prove truth of the matter asserted, but direct statements, e.g. “I am sad” are hearsay but fall within state of mind exception.

Question 4

What hearsay exceptions are dubbed “nonhearsay” by the FRE?

Answer 4

(a) prior statements by witnesses IF (1) statements of ID (2) inconsistent statements given under oath in prior proceeding, (3) consistent statements offered to rebut charge that witness is lying/exaggerating due to motive and statement comes before motive arose, OR offered to rehab witness on any ground other than truthfulness (e.g. faulty memory)

Note: these three cases, prior statements can be introduced to prove the truth of the matter, but in general prior inconsistent statements can always be introduced ONLY to impeach a witness (remember foundational req’s if brought in to impeach a witness)

(b) opposing party statements if offered against the party

Question 5

When are prior statements by a witness considered nonhearsay, and are therefore admissible to prove the truth of the matter asserted?

Answer 5

(1) statements of ID
(2) inconsistent statements given under oath in prior proceeding,
(3) consistent statements offered to rebut charge that witness is lying/exaggerating due to motive and statement comes before motive arose, OR offered to rehab witness on any ground other than truthfulness (e.g. faulty memory)

Note: these three cases, prior statements can be introduced to prove the truth of the matter, but in general can always be introduced ONLY to impeach a witness (remember foundational req’s if brought in to impeach a witness)

Question 6

When does a party’s out of court silence qualify as adoption of a statement that may then be introduced as nonhearsay against them?

Answer 6

When (a) party heard and understood the statement (b) party was physically and mentally capable of responding to the statement, and (c) a reasonable person would have denied the accusation

Note: silence in the face of allegations by cops in criminal cases is not considered adoption

Question 7

In what cases can one person’s statement be admissible as a party’s statement due to special relationship? (vicarious statements)

Answer 7

• adoptive statements
• authorized spokesperson
• agents, employees IF: (1) re matter within scope of agency/employment and (2) made during the existence of the relationship
• partners (re matters within scope)
• co-conspirators (if in furtherance of conspiracy, both party to it at the time)
• state court only - joint-tenants/owners

Note: co-parties is not a sufficient relationship

Question 8

When is an agent’s or employees statement considered a vicarious statement for the employer, i.e. may be introduced against them as a party statement?

Answer 8

When both (a) statement is re matters within the scope of the employment and (b) was made during the employment relationship

Question 9

Before admitting a statement by co-conspirator against the other conspirator as a party statement, the court must determine that ____ by _____ standard.

Answer 9

A conspiracy existed and party participated in it/ a preponderance of the evidence

Question 10

Before admitting vicarious statements, the court must make preliminary determinations to decide whether the statement may be considered vicarious. The court must consider ____, but cannot _____.

Answer 10

Contents of the statement, but cannot allow that to stand as sufficient evidence alone.

Question 11

Which hearsay exceptions require the declarant to be unavailable?

Answer 11

• former testimony
• statements against interest
• dying declarations
• statements re own personal or family history (or by someone intimately associated)
• statements offered against party who made declarant unavailable to prevent from testifying

Question 12

WRT hearsay exceptions that require the declarant to be unavailable to testify, what qualifies as valid excuses for unavailability?

Answer 12

• death or physical/mental illness
• privilege
• refuse to testify
• do not remember
• outside of jdx of court and party cannot get them to attend

Note: if witness can give deposition testimony they are considered available, except WRT (a) former testimony exception and (b) forfeiture by wrongdoing

Question 13

When is a declarant’s former testimony admissible as an exception to the hearsay rule?

Answer 13

When:

(a) declarant is unavailable for valid reasons
(b) testimony was given under oath
(c) party against whom the testimony is being offered had opportunity + similar motive to develop testimony in prior proceeding (or predecessor in interest did)

Note: this is narrow category, essentially requires same party was present in prior case + case was re same subject matter

Question 14

When is prior testimony from grand jury proceedings admissible as an out of court statement to prove truth of the matter asserted?

Answer 14

Not under the former testimony hearsay exception b/c grand jury proceedings do not provide opportunity for cross-examination. BUT, if it is a prior inconsistent statement made under oath then that will be admissible (to impeach or for substantive proof)

Question 15

When is a statement against interest admissible to prove the truth of the matter asserted as an exception to the hearsay rule?

Answer 15

When:

(a) declarant unavailable
(b) against declarant’s pecuniary, proprietary, or penal interest
(c) declarant must have had personal knowledge of facts/aware the statement was against interest

Note: subjecting declarant to social disgrace doesn’t count
Note: in criminal cases, statements against penal interest must be corroborated
Note: must sever statement to include ONLY portion that is against own interest

Question 16

When is a dying declaration admissible to prove truth of the matter asserted as an exception to the hearsay rule?

Answer 16

(a) in homicide prosecution or civil case
(b) declarant unavailable (but doesn’t need to be dead)
(c) declarant believed death to be imminent
(d) statement re cause or circumstances of death (based on PK)

Note: prosecutions for attempted homicide do NOT count

Question 17

Which types of statements are admissible as hearsay exceptions regardless of the declarant’s availability?

Answer 17

• excited utterances
• present sense impressions
• present state of mind
• statements made for purpose of medical diagnosis/treatment
• business records
• public/other official records/judgments
• ancient documents
• learned treatises
• docs affecting property interests
• family records
• market reports
• reputation

Question 18

When is an excited utterance admissible to prove the truth of the matter asserted?

Answer 18

(a) statement is re startling event
(b) made while still under the stress of the event

Note: sometimes failed dying declaration may succeed as excited utterance

Question 19

When is a present sense impression admissible to prove truth of the matter asserted?

Answer 19

(a) describes event/condition
(b) made immediately after or during event/perception

Note: present sense impression & excited utterance often overlap

Question 20

When is a statement re declarant’s state of mind admissible to prove the truth of the matter asserted?

Answer 20

statement re then-existing state of mind (includes motive, intent, plan as well)

Note: memory or belief is NOT admissible

Question 21

When are statements made for purpose of medical diagnosis/treatment admissible to prove truth of the matter?

Answer 21

(a) statement describes person’s medical history, past or present symptoms, or general cause
(b) made for and reasonable pertinent to medical diagnosis or treatment

Note: does NOT need to be describing their own condition
Note: does NOT need to be made to medical personnel
Note: sever the statement if part does not fall under this exception, e.g. identity of attacker (unless child abuse victim)
Note: OK even if person is speaking to medical professional for sole purpose of testifying

Question 22

When are business records admissible to prove the truth of the matter asserted?

Answer 22

(a) made by business - broadly defined (organizations)
(b) made in regular course of biz + biz regularly keeps such records (duty to record), (e.g. no accident reports, things for litigation)
(c) recorded near time of event
(d) writer had PK or person who told writer (person with duty to record) had PK

Note: remember multiple hearsay problem - need exceptions for both layers
Note: need proper foundation for biz records - custodian of record/person familiar to certify or testify

Question 23

What types of public records and reports are admissible as an exception to the hearsay rule?

Answer 23

• records re activities of office (e.g. payroll)
• records of things observed pursuant to duty imposed by law (e.g. weather), (does not include police observations in criminal cases)
• in civil cases + criminal cases against the govt, factual findings resulting from investigation authorized by law (e.g., FAA report)
• records of vital statistics
• statement that record was searched for and is absent
• judgments

Question 24

What 2 req’s must public records meet to be admissible? (+ fall within categories)

Answer 24

(1) made within scope of duty
(2) made near time of event

Note: check for double hearsay

Question 25

When are police reports admissible as a hearsay exception?

Answer 25

Generally admissible under public records exception, but not against a criminal D in criminal case.

Question 26

What types of judgments are/are not admissible under the public records exception to the hearsay rule?

Answer 26

Generally, all judgments are admissible, but:

• in a criminal case, prior criminal felony convictions are only admissible against D (against others only for impeachment)
• in criminal or civil case, prior felony convictions admissible to prove fact essential to judgment
• evidence of prior acquittal may not be introduced
• civil judgment inadmissible in criminal cases, and generally inadmissible in civil cases

Question 27

When is a learned treatise admissible as an exception to the hearsay rule?

Answer 27

When (a) established as reliable (b) relied on by expert witness during direct.

Note: these are read into evidence, NOT admitted

Question 28

What qualifies as an ancient document to be excluded from the hearsay rule?

Answer 28

Authenticated docs made before Jan 1, 1998.

Question 29

If hearsay statements do not fall under any of the explicit hearsay exceptions, when may they be let in?

Answer 29

Under the catchall hearsay exception, when:

(a) possesses sufficient guarantees of trustworthiness
(b) statement is strictly necessary - i.e. probative of a fact more than any other piece of evidence
(c) party must give notice (usually written, pre-trial) re the statement

Question 30

What does the Confrontation Clause require?

Answer 30

In criminal case, hearsay may not be offered against the accused (even when an exception applies) when:

(a) declarant is unavailable
(b) statement is testimonial - not for emergency
(c) accused had no opportunity to cross exam prior to trial

(CC doesn’t apply if D made person unavailable to testify on purpose)
Note: remember, statement must be hearsay to begin with

Question 31

When is a statement considered “testimonial” for purposes of the confrontation clause (i.e. will not be admitted as hearsay despite exceptions applying).

Answer 31

when primary purpose of statement was to aid in investigation/provide info for later prosecution - NOT for help in emergency

Note: written reports, forensic analysis, etc IS testimonial for CC purposes - D must have had opportunity to cross exam author of report for them to be introduced