Hearsay

Question 1

Hearsay

Answer 1

[FRE 801] Out of court statement offered to prove the truth of the matter asserted. Inadmissible unless exception applies.

Question 2

Who qualifies as a declarant for hearsay?

Answer 2

Must be a human being. Evidence from animals and machines are not statements.

Question 3

What is considered a statement for hearsay purposes?

Answer 3

[FRE 801] Oral assertion; written assertion; or nonverbal conduct/gestures if the person intended it as an assertion.

Question 4

What types of statements do not constitute “offering to prove the truth of the matter asserted,” and thus are considered non-hearsay?

Answer 4

(1) Statements that have independent legal significance; (2) Statements to prove the state of mind of the declarant or the listener; (3) Statements to show the effect on the listener; (4) Statements solely offered for impeachment

Question 5

Are statements by an opposing party admissible as nonhearsay?

Answer 5

Yes, out-of-court statements made by a party to litigation are always admissible as non-hearsay when offered by the opposing party.

Question 6

What type of opposing party statements are considered non-hearsay according to the FRE?

Answer 6

[FRE 801(d)(2)] (1) Judicial/personal admissions; (2) Adoptive admissions; (3) Representative/vicarious admissions by (i) agent/employee in the scope of relationship; (ii) authorized speaker; or (iii) co-conspirators

Question 7

What type of declarant-witness statements (that would otherwise be hearsay) are considered non-hearsay according to the FRE?

Answer 7

[FRE 801(d)(1)] (1) Prior sworn inconsistent statements; (2) Prior consistent statement; and (3) prior identification

Question 8

Judicial Admission

Answer 8

Statement by a party in the current litigation that was either made in the pleadings, during discovery, or during trial. Admissible as non-hearsay.

Question 9

What is an adoptive admission?

Answer 9

[FRE 801] Statement made by another person that the party adopts/agrees with. Two ways to adopt: (1) expressly (clear words of agreement) or (2) by silence if (i) the party heard and understood the statement and was given an opportunity to response; (ii) a reasonable party would have denied/responded to the statement; and (iii) the party did not deny or respond.

Question 10

What is a representative or authorized admission?

Answer 10

Statement made by another that is imputed to the party, either because the party authorized it or has a special relationship with the speaker. Three types: (1) statements made by employee/agent, (2) statements made by authorized speaker; and (3) statements made by co-conspirators.

Question 11

When do statements made by employee/agent constitute vicarious admissions?

Answer 11

[FRE 801(d)(2)(d)] If the statements were: (1) about matter within the scope of employer-employee relationship and (2) made during the existence of the relationship.

Question 12

When are the statements of co-conspirators considered vicarious admissions?

Answer 12

[FRE 801(d)(2)(E)] When the statements were made during and in furtherance of the conspiracy

Question 13

Name the 3 types of prior statements that are considered nonhearsay. What is required to admit them?

Answer 13

(1) Prior sworn inconsistent statements; (2) prior consistent statements; (3) prior statements of identification. In order to be admissible, the declarant must: (1) testify at the present trial and (2) be subject to cross-examination.

Question 14

When is a prior inconsistent statement admissible as both substantive evidence and evidence to impeach?

Answer 14

[FRE 801(d)(1)(A)] If (1) the declarant is available to testify and subject to cross-examination and (2) the prior inconsistent statement was a sworn statement under penalty of perjury at a prior trial, hearing, deposition, or other legal proceeding. *** If the statement was not made under oath, it cannot be admitted for substantive evidence. Only for impeachment purposes.

Question 15

When is a prior inconsistent statement only admissible to impeach (and not as substantive evidence)?

Answer 15

If the statement was NOT made under oath, it will only be allowed to impeach. If the statement was made under oath, it is admissible to impeach and as substantive evidence.

Question 16

When is a prior consistent statement admissible as nonhearsay?

Answer 16

[FRE 801(d)(1)] If (1) declarant is a currently testifying witness and subject to cross-examination; and either (2) statement is offered to rebut charge that declarant recently fabricated testimony or was subject to undue influence or motive OR (3) statement is to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Question 17

When is a prior identification admissible as nonhearsay?

Answer 17

[FRE 801(d)(1)(C)] Admissible as substantive evidence if (1) declarant is currently testifying witness and subject to cross-examination and (2) witness identified the person prior to trial.

Question 18

What is the hearsay exception for present sense impressions?

Answer 18

[FRE 803(1)] Statement is admissible if (1) it describes or explains an event and (2) made during the event or immediately afterwards.

Question 19

What is the hearsay exception for excited utterances?

Answer 19

[FRE 803(2)] Statement is admissible if it (1) relates to a startling event or condition and (2) was made while the declarant was under the stress of excitement that it caused.

Question 20

What is the hearsay exception for a statement concerning a mental, emotional, or physical condition?

Answer 20

[FRE 803(3)] Admissible if it’s a statement about the declarant’s then-existing (1) state of mind (such as motive, intent, or plan) or (2) emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health) **Statements of memory or belief about the events are inadmissible. The statements must be about what the declarant was experiencing at the time it was said.

Question 21

When is a statement of memory or belief admissible under the then-present mental state exception to hearsay?

Answer 21

When it relates to the validity or terms of the declarant’s will

Question 22

What is the hearsay exception for statements made for purpose of medical diagnosis or treatment?

Answer 22

[FRE 803(4)] Statement is admissible if it (1) was made to medical personnel (doctors, nurses, anyone involved in treatment) and (2) was made for - and is pertinent to - medical diagnosis or treatment

Question 23

What is the hearsay exception for past recorded recollection?

Answer 23

[FRE 803(5)] Recorded recollection is admissible if (1) the record is on a matter that the witness once knew about but cannot recall well enough to testify on; (2) the record was made or adopted by the witness when the matter was fresh in the witness’s memory; and (3) the record accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Question 24

What are the rights of an adverse party when past recollection recorded is used?

Answer 24

(1) Inspect the writing; (2) cross-examine with it; (3) show it to the jury for comparison; and (4) introduce relevant portions into evidence for its truth

Question 25

What is the hearsay exception for business records

Answer 25

[FRE 803(6)(A-C); FRE 101(b)(4)] A record of an act, event, condition, opinion, or diagnosis is admissible if: (1) the record was made in the regular course of business; (2) the record was made “at or near the time” of the matter recorded; and (3) record was made by an employee of the business with knowledge of the matter recorded

Question 26

Under the business records exception, is evidence showing an absence of an entry in record admissible?

Answer 26

[FRE 803(7)] Yes, omission may be admitted to show the matter did not occur or exist if: (1) records were regularly kept for a matter of that kind and (2) opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

Question 27

What is the hearsay exception for public records and reports?

Answer 27

[FRE 803(8)] A record or statement of a public office is admissible if it sets out: (1) the office’s activities; (2) a matter observed while under a legal duty to report (except in a matter observed by law-enforcement personnel in a criminal case); (3) factual findings from a legally authorized investigation for civil case or against government in a criminal case; and (4) the source of information nor other circumstances indicate a lack of trustworthiness.

Question 28

If a business record quotes someone who doesn’t work for the business is it admissible?

Answer 28

No, this is multiple hearsay. The statement will require another hearsay exception to be admitted.

Question 29

What is the hearsay exception for records of vital statistics?

Answer 29

[FRE 803(9)] Records of a birth, death, or marriage are admissible if reported to public office in accordance with a legal duty.

Question 30

What is the hearsay exception for learned treatises?

Answer 30

[FRE 803(18)] A statement contained in a treatise, periodical, or pamphlet is admissible if (1) statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination and (2) publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but NOT received as an exhibit.

Question 31

What are the hearsay exceptions if the declarant is unavailable?

Answer 31

(1) Former testimony; (2) statement against interest; (3) dying declaration; (4) statement of personal or family history; and (5) statements against party that caused declarant to be unavailable.

Question 32

When is the declarant considered unavailable?

Answer 32

[FRE 804(a)] If declarant: (1) is exempt because of a privilege; (2) refuses to testify despite a court order to do so; (3) incapacitated due to either death, physical or mental illness; (4) has a faulty memory of the subject matter; or (5) cannot be subpoenaed or compelled to attend

Question 33

What happens if the proponent caused the declarant to be unavailable?

Answer 33

[FRE 804(a)] If the proponent procured or wrongfully caused the declarant’s unavailability to prevent the declarant from attending or testifying, the declarant will not be considered unavailable.

Question 34

When does the hearsay exception for former testimony apply?

Answer 34

[FRE 804(b)(1)] Former testimony is admissible if: (1) declarant is unavailable; (2) testimony was given under oath as a witness at a trial, hearing, or lawful deposition; and (3) the party against whom the testimony is being offered had an opportunity and similar motive to develop testimony by direct, cross, or redirect examination.

Question 35

Do sworn affidavits or statements qualify for the former testimony exception?

Answer 35

No because they are not considered hearings or proceedings

Question 36

Is grand jury testimony admissible under the former testimony exception?

Answer 36

No, but may be admissible as a prior inconsistent statement

Question 37

When does the exception for dying declarations apply?

Answer 37

[FRE 804(b)(2)] (1) The proceeding is either a homicide case or civil case; and (2) declarant is unavailable; (3) declarant believed death was imminent; and (4) statement was about the cause or circumstances surrounding the declarant’s imminent death

Question 38

When does the exception for a statement against interest apply?

Answer 38

[FRE 804(b)(3)] (1) Declarant is unavailable; (2) Statement is against the declarant’s proprietary or pecuniary interest or would expose the declarant to civil or criminal liability; and (3) a reasonable person in declarant’s position would not have made the statement unless she believed it to be true AND if it is a criminal case or the statement exposes declarant to criminal liability statement must be supported by corroborating circumstances that clearly indicate trustworthiness.

Question 39

What is the difference between an opposing party statement and a statement against interest?

Answer 39

Opposing party statement must be made by an opposing party in the suit, does not need to be against party’s interest, and declarant does not need to be unavailable. Statement against interest can be made by anyone, must be against party’s interest, and declarant must be unavailable.

Question 40

When does the hearsay exception for statement of personal or family history apply?

Answer 40

[FRE 804(b)(4)] (1) Declarant is unavailable and (2) statement is regarding the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, or other familial relationship OR (3) statement concerns another person’s family history and the declarant is so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

Question 41

When does the hearsay exception for forfeiture by wrongdoing apply?

Answer 41

[FRE 804(b)(6)] If a party wrongfully causes the declarant’s unavailability to prevent them from testifying, the party is barred from objecting to the witness’ testimony as hearsay.

Question 42

What is the residual hearsay exception?

Answer 42

[FRE 807] A hearsay statement that is not covered under FRE 803 or 804 may be admissible if (1) statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain; and (4) admitting it will best serve the purposes of the FRE and the interests of justice.

Question 43

What is the importance of the Confrontation Clause?

Answer 43

Provides that testimonial hearsay against a criminal D who has not had the opportunity to cross-examine the declarant, violates D’s 6th Amendment right to “confront the witnesses against him.”

Question 44

What is testimonial evidence in the context of the Confrontation Clause?

Answer 44

[Crawford v. Washington] (1) Prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and (2) police interrogations (unless during an emergency)

Question 45

When can testimonial evidence be admitted without violating the Confrontation Clause?

Answer 45

(1) Declarant is unavailable and (2) Criminal D had a prior opportunity to cross-examine the declarant.

Question 46

Can hearsay within hearsay be admitted?

Answer 46

Yes, as long as each hearsay statement is admitted under a hearsay exception.