Hearsay

Question 1

Definition of Hearsay

Answer 1

An out of court statement offered to prove the truth of the matter asserted..

• Can be spoken or written

Declarant: Person who spoke the hearsay

Question 2

Exclusions (What is NOT Hearsay)

Answer 2

1. Prior Inconsistent Statements
2. Prior Consistent Statements
3. Prior Statements of Identification
4. Admissions of Party Opponent
   
   1. Adoptive Statements
   2. Vicarious Admissions
   3. Co-Conspirators

Question 3

Prior Inconsistent Statement (Exclusion to Hearsay)

Answer 3

A prior inconsistent statement is excluded form hearsay if:

• The witness is the declarant and is subject to cross-examination AND
• Statement was made under oath (predisposition, etc.)

Question 4

Prior Consistent Statement (Hearsay Exclusion)

Answer 4

Prior consistent statements can be used to rehabilitate the witness if the witness is the declarant and is subject to cross-examination

Question 5

Prior Statement of Identification (Hearsay Exclusion)

Answer 5

A previous out-of-court identification of a person is admissible if the witness is the declarant and is subject to cross-examination.

[lineups]

Question 6

Admission of Party Opponent (Exclusion Hearsay)

Answer 6

Generally, if a statement being introduced against a party is the party’s own prior statement, then it is admissible.

Adoptive Admissions

A statement made by someone else which is then expressly or impliedly adopted by party opponent.

Silence As Adoptive Admissions:

Rarely used, requires:

• The party heard and understood the statement;
• The party had the ability to respond; AND
• A reasonable person similarly situated would have denied the statement.

Vicarious Admissions

Statements made by a person authorized to speak on behalf of the party

Co-Conspirators

Statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other co-conspirators

Question 7

Former Testimony (Hearsay Exception)

Answer 7

Rule: Former testimony given by an unavailable witness under oath at a prior hearing/deposition is admissible in a subsequent trial IF

the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony through direct or cross-examination at that prior hearing, deposition, etc.

Question 8

Dying Declaration (Hearsay Exception)

Answer 8

Dying declarations are admissible if:

1. Individual believes they are dying
2. Believes that death is imminent
3. the Statement relates to the cause or circumstance of death AND
4. the declarant is unavailable

Declarant does not need to die

Question 9

Statements Against Interest (Hearsay Exception)

Answer 9

A statement that, at the time it was made, was against the declarant’s pecuniary, proprietary, civil, or penal interest such that a reasonable person would not have made the statement unless it were true.

REQUIRES declarant to be unavailable.

[Think, Person XYZ told me they committed the murders (and XYZ is the declarant)]

Question 10

Statements of Personal or Family History (Hearsay Exception)

Answer 10

Statements made concerning the unavailable declarant’s own birth, adoption, marriage, familial relationship, etc. are admissible.

Question 11

Forfeiture by Misconduct [Declarant is Unavailable due to PArty’s Wrongdoing] [Hearsay Exception]

Answer 11

If a party engages in wrongdoing that renders the declarant unavailable to testify, then the party cannot claim the declarant is unavailable (for hearsay purposes) AND the door is open to use anything declarant said against that party.

Question 12

Present Sense Impression (Hearsay Exception)

Answer 12

A statement made while the declarant was perceiving the event (or immediately thereafter)

[Description or explanation of the event]

Question 13

Excited Utterance (Hearsay Exception)

Answer 13

Statement relating to a startling event or condition while the declarant is still under the stress or excitement caused by the event or condition

Question 14

State of Mind (Hearsay Exception)

Answer 14

Statement of a declarant’s then existing physical, mental, or emotional condition is admissible to prove the existence of that condition.

Question 15

Statements Made for the Purpose of Medical Diagnoses or Treatment (Hearsay Exception)

Answer 15

Statements that describe a declarant’s medical history or past/present symptoms are not hearsay if pertinent to the treatment of diagnoses of that medical condition.

Question 16

Past Recollection Recorded (Hearsay Exception)

Answer 16

When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:

• the record concerns a matter about which the witness once had knowledge;
• the record was prepared or adopted by the witness when the matter was fresh;
• the record accurately reflects the witness’s knowledge; AND
• the witness testifies that he has insufficient memory of the event to testify fully accurately (without reading the document to the jury)

*Jury do not get to see the record, it is not put into the record unless the adversary introduces it to the Jury

Question 17

Business Record (Hearsay Exception)

Answer 17

Any record or writing of an act or event made in the course of a regularly conducted business activity.

Admissible IF it was made:

1. At or near the time of the event it records;
2. By a person with knowledge of the event and under a duty to report it; AND
3. It is a regular practice of business to make that kind of record

Question 18

Public Records (Hearsay Exception)

Answer 18

Three things are admissible in public records:

• Activities
• Observations
• Factual Findings

If it is a police record, then that record cannot include observations or factual findings.

Question 19

Learned Treatises (Hearsay Record)

Answer 19

May be used to impeach an expert witness.

Question 20

Judgment of Previous Conviction (Hearsay Exception)

Answer 20

Admissible to prove any fact that was essential to that judgment.