Hearsay

Question 1

General Rule for HS

Answer 1

FRE 801: Hearsay is an out of court statement, made in court, offered to prove TOMA

FRE 802: HS is inadmissible unless a statute, FRE, or SCOTUS says otherwise

STATEMENT:
FRE 801(a): A statement is a person’s oral/written assertion or non-verbal conduct (if it is intended as an assertion)

NON-TOMA PURPOSE:
Knowledge of speaker (i.e. to prove person knew of event), notice to listener (i.e. to prove person was told it was dangerous), publication or defamation (i.e. to prove someone heard it), effect on listener (i.e. to prove someone was scared), legally binding statements (i.e. not to prove the truth, rather to prove they entered into a K)

IF NON-TOMA ADMITTED, THEN LIMITING INSTRUCTIONS

Question 2

Hearsay Exemptions (i.e. NOT HS)

Answer 2

FRE 801(d): Prior statements by witnesses (inconsistent, consistent, and ID) and statements made by opposing parties

Question 3

Hearsay within Hearsay

Answer 3

FRE 805: Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule

Question 4

Inconsistent Statements (HS Exemption)

Answer 4

FRE 801(d)(1)(A): If the declarant is testifying and subject to cross, a prior inconsistent statement is admissible if it was given under penalty of perjury at trial, deposition, or other proceeding (e.g. grand jury)

CEC 1235: Evidence of a prior inconsistent statement is admissible for a testifying witness that is subject to cross. (NO NEED FOR HEARING OR PENALTY OF PERJURY)

Subject to cross: feigned memory or real memory (BUT NOT a privilege or refusal to testify)

Question 5

Consistent Statements (HS Exemption)

Answer 5

FRE 801(d)(1)(B): If the declarant is testifying and subject to cross, a prior consistent statement is admissible if offered to (a) rebut recently fabricated improper influence, motive, or (b) to rehabilitate a declarant’s credibility when attacked on another ground

Subject to cross: feigned memory or real memory (BUT NOT a privilege)

Question 6

Prior Identification (HS Exemption)

Answer 6

FRE 801(d)(1)(C): If the declarant is testifying and subject to cross, a prior identification is admissible.

Question 7

Present Sense Impression (PSI)

Answer 7

Regardless of whether the declarant is available (803)

FRE 803(1): Statement explaining or describing an event or condition made while or immediately after the declarant perceived it

CEC 1241: Evidence offered to explain, qualify or make understandable the conduct of the declarant is admissible if made while the declarant is engaging in that conduct

Question 8

Excited Utterance

Answer 8

Regardless of whether the declarant is available (803)

FRE 803(2): Statement relating to a startling event or condition, made while the declarant was under the stress of excitement that caused it

R U EXCITED

Question 9

State of Mind

Answer 9

Regardless of whether the declarant is available (803)

FRE 803(3): A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory or physical condition….but NOT including a statement of memory or belief unless it relates to the validity or terms of the declarant’s will

Hillman: Can prove another person’s then existing state of mind

Question 10

Medical Treatment (HS Exception)

Answer 10

Regardless of whether the declarant is available (803)

FRE 803(4): A statement is made and is reasonably pertinent to medical diagnosis or treatment and describes: medical history, past/present sensations and their inception, or general cause

DOES NOT INCLUDE STATEMENTS BLAMING OTHERS

High school classes

Question 11

Recorded Recollection (HS Exception)

Answer 11

REQUIRES THE WITNESS TO BE TESTIFYING

FRE 803(5): A record that:
(A) on the matter the witness once knew but **now cannot recall well **enough to testify fully and accurately
(B) was made or adopted by the witness where the matter was fresh in the witness’ memory and
(C) accurately reflects the witness’ knowledge

If admitted, may be read into evidence but can only be received as an exhibit if offered by the adverse party (i.e. person not calling the witness)

Question 12

Business Records

Answer 12

Regardless of whether the declarant is available (803)

FRE 803(6): A record of an act, event, condition, opinion, or diagnosis if:
(a) made at or near the time by someone with knowledge
(b) made in the regular course of business
(c) made as a regular practice of that activity
(d) can be met by a qualified witness or custodian, and
(e) opponent does not raise untrustworthiness issue (i.e. in anticipation of litigation or investigation of an accident)

Ken Can Punch W/C Uhhhn

Question 13

Public Records

Answer 13

Regardless whether the declarant is available (803)

FRE 803(8): A record or a statement by a public office if:
(a)(i) sets out the office’s activities,
(a)(ii) sets out matters observed under legal duty, NOT including observations made by police in a criminal case
(a)(iii) in a civil, or criminal case against the government, of factual findings from a legally authorized investigation and
(b) opponent does not raise issues of untrustworthiness

A O(LD) Fuckin Fart Unhhh

Question 14

Absence of Business Records

Answer 14

Regardless whether the declarant is available (803)

FRE 803(7): Evidence that (a) is admitted to prove that the matter did not occur or exist, (b) is regularly kept for a matter of that kind, and (c) opponent does not show issues of untrustworthiness

Question 15

Absence of Public Records

Answer 15

Regardless whether the declarant is available (803)

FRE 803(10): Testimony or certification that a diligent search failed to disclose a public record if
(a) it is admitted to prove a matter did not occur or exist, if the office regularly kept a statement of that kind and
(b) in a criminal case, P provides notice

Question 16

Ancient Records

Answer 16

Regardless whether the declarant is available (803)

FRE 803(16): A statement in a document prepared before January 1, 1998 and whose authenticity can be established

CEC 1331: A statement contained in a writing more than 30 years old and has since been generally acted upon persons having an interest in that matter

Question 17

Market Reports

Answer 17

Regardless whether the declarant is available (803)

FRE 803(17): Market quotes, lists, or directories that are generally relied on by the public or by persons in particular occupations

Question 18

Learned Treaties

Answer 18

Regardless whether the declarant is available (803)

FRE 803(18): Statement contained in a treatise, periodical, or pamphlet if (a) brought up by an expert on cross or relied on direct and (b) established as reliable authority by the expert’s admission or judicial notice

IF ADMITTED, it can be read but not received as an exhibit

Question 19

Witness Unavailability

Answer 19

FRE 804(a): A witness is unavailable if:
(1) Privilege – Court find it applies
(2) Refusal to testify – Refuses despite a court order
(3) Lack of memory – If witness testifies not remembering
(4) Death or Physical or Mental Illness
(5) Absence – Absent and proponent cannot procure attendance (former testimony and forfeiture) or attendance and testimony (death or statement against interest)

DOES NOT apply if proponent wrongfully caused the unavailability to prevent the declarant from attending or testifying

Question 20

Former Testimony

Answer 20

MADE ONLY WHEN WITNESS IS UNAVAILABLE

FRE 804(b)(1): Testimony given as a witness at trial, hearing or other lawful deposition (in the current proceeding or before) and OPC had an opportunity to question the declarant before with the same motive as this current trial and was the same party

Question 21

Dying Declaration

Answer 21

MADE ONLY WHEN WITNESS IS UNAVAILABLE

FRE 804(b)(2): In a civil or criminal homicide case, a statement that the declarant, while believing that their own death was imminent, made about its cause or circumstances

CEC 1242: Statement made by a dying person concerning the cause and circumstances of their own death. DECLARANT MUST DIE

Question 22

Statements Against Interest

Answer 22

MADE ONLY WHEN WITNESS IS UNAVAILABLE

FRE 804(b)(3):
(a) A statement that a reasonable person would have made only if the person believed it to be true because when made:
(1) it was so contrary to declarant’s proprietary or pecuniary interest, or
(2) invalidates declarant’s claim against someone else, or
(3) to expose the declarant to civil or criminal liability and
(b) if offered in a criminal case against a criminal D, is supported by corroborating circumstances that clearly indicate its trustworthiness

Peter Piper Is Liar and Cheat

Question 23

Forfeiture

Answer 23

MADE ONLY WHEN WITNESS IS UNAVAILABLE

FRE 804(b)(6): Statement offered against a party that wrongfully caused or acquiesced the declarant’s unavailability as a witness, and did so intending that result

Question 24

Statements by Opposing Party

Answer 24

FRE 801(d)(2): Not hearsay. Statement is offered against the opposing party, made by the opposing party, acts as a statement in which the party has adopted as their own, made by a person authorized to speak on that subject, and is by an agent or employee within the scope of their employment

Question 25

Residual Exception

Answer 25

FRE 807: A hearsay statement is not excluded by the rules if (1) it is supported by sufficient guarantees of trustworthiness, considering the totality of the circumstances and (2) is more probative than any other evidence the proponent can obtain through reasonable efforts

IF ADMITTED, party must given notice of intent to offer, substance of statement, and declarant’s name

Question 26

Attacking/Supporting Credibility (HS Rule)

Answer 26

FRE 806: When a hearsay statement has been admitted into evidence, the declarant’s credibility may be attacked/supported by any evidence that would be admissible for those purposes as if the declarant has testified (Rule 613, 602, 603, 608(a), 609)

Question 27

Crawford

Answer 27

The 6th Amend guarantees each criminal D the right to be confronted with witnesses against him.

(1) Offered against the criminal D

When HS statements are admitted for their truth against criminal Ds, the 6th Amen applies.

(2) Testimonial or non-testimonial?

Testimonial: If its primary purpose is to be used later in criminal prosecution (i.e. resembles in court testimony)

Non-testimonial: If its primary purpose is to address an ongoing emergency

IF EXPERT:
Plurality: Testimonial evidence admissible because not for TOMA
Dissent: Testimonial evidence is inadmissible through expert because it violates Crawford

(3) D (a) is able to cross the witness or (b) D has a prior opportunity and similar motive to cross if witness unavailable

EXCEPTION to 3: Forfeiture and dying declaration