HEARSAY Flashcards
Statement of the Rule
- Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted.
- Hearsay is ONLY admissible if it falls under an exception.
Hearsay Within Hearsay
HIGH
- When evidence contains hearsay within hearsay (multiple or double hearsay), each level of hearsay must fall within an exception to be admissible.
“Statement”
-A “statement” means a person’s oral/written assertion, or nonverbal conduct, if person intended it as an assertion.
- However, if act DOES NOT assert/communicate anything (i.e. crying), it is not deemed a statement for hearsay purposes.
Not Made at Current Trial or Hearing
- Hearsay statement can, in fact, be made inside a courtroom (at a prior trial).
- “Out-of-court” means that statement was not made by declarant at current trial/hearing.
“Offered to Prove the Truth of the Matter Asserted”
- Some out-of-court statements may look like hearsay at first glance, but are not hearsay b/c they are not being offered for truth of matter asserted in statement.
- Ex. statement might be relevant to case merely b/c it was spoken/written.
- If offered for non-truth purpose, it doesn’t matter that declarant wasn’t cross-examined when they made statement.
Common Non-Truth Purposes
HIGH
- Statements are not hearsay (also called “nonhearsay”) b/c they are not being offered for truth of matter asserted.
(1) Verbal acts/legally operative facts (words of contract/ defamatory words)
(2) Statements offered to show their effect on listener/reader (ex. to prove notice in a negligence case)
(3) Statements offered as circumstantial evidence of
declarant’s state of mind (ex. when party is trying to prove someone’s insanity/knowledge)
(4) prior inconsistent statement used to
impeach;
Tip
Do not confuse statements offered as circumstantial
evidence of declarant’s state of mind, which are almost always offered as evidence of insanity/knowledge, w/ statements that reflect directly on declarant’s state of mind (ex. “I feel sad” or “I’m going on a trip tomorrow”), which are usually offered to establish emotion/intent. Former is not hearsay, while latter is hearsay subject to a specific exception.
Tip
In deciding whether evidence is hearsay, ask yourself
whether we are relying on declarant’s credibility; in other words, does it matter whether declarant is telling the truth? If not, evidence isn’t hearsay.
STATEMENTS THAT ARE NONHEARSAY UNDER THE FEDERAL RULES
- There are certain statements that meet basic definition of hearsay, but have been specifically designated as “not hearsay”
- These statements are often referred to as hearsay “exclusions” or “exemptions,” b/c they have been excluded from hearsay definition.
- Because there is no hearsay concern, these statements are admissible as substantive evidence (unless excluded by some different evidence rule).
Tip
Don’t get tripped up by terminology; terms “not hearsay” & “nonhearsay” mean the same thing. A statement can be nonhearsay either b/c (1) it doesn’t fall w/in basic definition of hearsay (ex. it’s not being offered for the truth of the matter asserted), or (2) it falls w/in one of these special hearsay exclusions.
Prior Statements of Testifying Witnesses
- As a general rule, witness’s own prior out-of-court statement is hearsay & is inadmissible unless exception applies.
- Prior statement by a testifying witness who is subject to cross is not hearsay if:
(1) IDs a person as someone the declarant perceived earlier (even if witness cannot remember making ID);
(2) Prior statement is inconsistent w/ declarant’s
in-court testimony & was given under oath at a prior
proceeding; or
(3) Prior statement is consistent w/ declarant’s in court testimony and is
(a) offered to rebut charge that witness is lying/exaggerating b/c of some motive (& statement was made b/f any motive to lie/exaggerate arose), or
(b) offered to rehabilitate witness whose credibility has been impeached on some other ground (other than a general attack on witness’s character for truthfulness), such as an inconsistency/charge of faulty memory. - (See the rehabilitation discussion in the Impeachment module for further discussion.)
Tip
Remember that these 3 hearsay exclusions apply to statements of testifying witnesses only. Don’t be fooled by an out-of-court “statement of ID” made by a nontestifying declarant. Such a statement will be inadmissible unless it falls w/in a hearsay exception.
Statements by or Attributable to Opposing Party
HIGH
- An OP’s statement (statement made by/attributable to a party & offered against that party) is not hearsay
- These statements are traditionally called “admissions of a party-opponent,” but this is misleading b/c declarant need not “admit” anything.
- OP’s statement, statement need not have been against declarant’s interest when made, & may even be an opinion.
- Personal knowledge is not required; statement may be based on hearsay.
Judicial and Extrajudicial Statements
- Party’s formal judicial statements (in pleadings, stipulations,
etc.) are conclusive & cannot be contradicted during trial. - Party’s informal judicial statements made during testimony & extrajudicial (out-of-court) statements are not conclusive & can be explained.
- Party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement
in another case. - Ex. if D pleads guilty to traffic charge relating to a car accident, that plea can be admitted against them as an opposing party’s statement in a subsequent civil case arising out of same accident.
Adoptive Statements
- Where party expressly/impliedly adopts/accepts statement of another, party’s acceptance may be admissible against them.
Silence
- If a party remains silent in face of an accusatory statement, their silence may be considered an implied acceptance to truth of that statement if following requirements are met:
(1) Party heard & understood statement;
(2) Party was physically & mentally capable of denying statement; and
(3) Reasonable person would have denied accusation
- Silence in face of accusations by police in a criminal case is almost never considered an admission of a crime.
Vicarious Statements
- Certain statements by another person are admissible against a party b/c of the relationship between them.
Co-Parties—Insufficient Relationship
- Statements of party are not receivable against their co-parties merely b/c they happen to be joined as parties.
Authorized Spokesperson
- Statement of person authorized by party to speak on its behalf (statement by company’s press agent) can be admitted against party.
Agents and Employees
- Statement by an agent/employee is admissible against principal if statement:
(1) concerned any matter w/in scope of their agency/ employment, and
(2) was made during existence of agency/employment relationship.
Tip
Make sure that both of these requirements are met. If an employee’s statement concerned a topic outside scope of their position, or if they made the statement after their employment was terminated, it won’t qualify as a vicarious statement of the employer.
Partners
- After a partnership is shown to exist, statement of one partner relating to matters w/in scope of partnership business is binding upon their co-partners.
Co-Conspirators
- A co-conspirator’s statement is admissible when offered against another conspirator if:
(1) a conspiracy existed between declarant & D-conspirator;
(2) statement was made during the conspiracy;
(3) statement was in furtherance of conspiracy; AND
(4) some independent evidence to establish existence of conspiracy is proven (outside of statements themselves). - Ct must determine existence of conspiracy, & party’s participation in it, by a preponderance of evidence standard (“more probably true than not true”; see Preliminary Determinations, below, for further discussion).
Privies in Title and Joint Tenants—State Courts Only
- In most state cts, statements of each joint owner are admissible against the other, & statements of a former owner of real property made at time they held title are admissible against those claiming under them (grantees, heirs, etc.).
- These statements do not qualify as opposing party statements, but may be admissible under one of hearsay exceptions (ex. statement against interest exception).
Preliminary Determinations
- B/f admitting an out-of-court statement as a vicarious
statement of an OP, ct must make a preliminary determination of declarant’s relationship w/ he party against whom statement is offered. - In other words, ct must first determine whether declarant was authorized to speak for party, whether declarant was party’s agent/employee, or whether declarant & party were co-conspirators.
- In making such a determination, ct must consider contents of statement, but statement alone is not sufficient to establish required relationship; there must be some independent evidence.
HEARSAY EXCEPTIONS—DECLARANT
UNAVAILABLE
- These statements are hearsay, but are admissible b/c
they are considered to be especially necessary/reliable. - 5 exceptions to hearsay rule that condition admissibility of hearsay statement on present unavailability of declarant to testify.
Grounds for Unavailability
- Declarant is unavailable if they:
(1) Unable to testify b/c death/physical/mental
illness;
(2) Exempt from testifying b/c of privilege;
(3) Refuse to testify concerning statement despite court order;
(4) Testify they do not remember subject matter; or
(5) Are absent (beyond reach of ct’s subpoena), & proponent is unable to procure their attendance/testimony by process/other reasonable means. - Declarant who is able to give deposition testimony in lieu of attending trial is considered to be an available witness—except w/ respect to (1) former testimony exception and (2) forfeiture by wrongdoing exception
Former Testimony
- The testimony of a now-unavailable witness is admissible if:
(1) Testimony was given under oath at trial, hearing, or deposition, in same case/different case; and
(2) Party against whom testimony is now being offered— or party’s predecessor in interest—had an opportunity & similar motive to develop declarant’s testimony at prior proceeding by direct, cross-, or redirect examination. - “Predecessor in interest” refers to person in privity relationship w/ party (ex. grantor-grantee, testator-executor, or joint tenants).
Tip
On a practical level, the “opportunity & similar motive” requirement means that party against whom testimony is offered (or, in a civil case, their predecessor in interest) must have been a party in former action, and former action must have involved same subject matter (but causes of action need not be identical).
Tip
B/c grand jury proceedings do not provide accused w/ opportunity for cross, grand jury testimony of an unavailable
declarant is not admissible against D under former testimony exception. Be careful not to confuse this w/ a prior inconsistent statement given under oath by a now-testifying witness (one of the hearsay exclusions discussed in the prior section). Grand jury testimony is admissible in that case, both as impeachment & substantive evidence.
Statements Against Interest
- A statement against interest is an exception to the hearsay rule, & is admissible when:
(1) it’s a statement against declarant’s penal, proprietary, or pecuniary interest when made (i.e. criminal, property, civil liability interests);
(2) declarant has firsthand knowledge;
(3) a reasonable person in declarant’s position would have made statement only if person believed it to be true; AND
(4) declarant is unavailable. - Must have been aware statement was against interest when made
• If a statement against interest is offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.
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“Statement” Means Single Remark
- If a person makes a declaration containing statements that are against their interest (ex. “I sold the drugs”) & statements that are not (ex. “X runs the drug ring”), exception covers only those remarks that inculpate declarant, not entire extended declaration.
Dying Declarations—Statements Under Belief of Impending Death
- In a homicide prosecution/any civil case, a statement made by a now-unavailable declarant is admissible if:
(1) Declarant believed their death was imminent (need not actually die); and
(2) Statement concerned cause/ circumstances of what declarant believed to be their impending death.
- Statement must be based on declarant’s perceptions & firsthand knowledge of what happened (unsupported opinion/ speculation will not qualify).
Tip
Bar exam may require you to distinguish Federal Rule on dying declarations from CLR. Beware of answer choices reflecting CL, which: (1) required that declarant ultimately die of injury, and (2) could not be used in civil cases.
Tip
Remember, although dying declaration exception may be used in any civil case, its use in criminal cases is restricted to homicide prosecutions (such as for murder/manslaughter). There are no dying declarations in prosecutions for attempted homicide, or for other crimes like robbery/ kidnapping.
Statements of Personal or Family History
- This exception isn’t as frequently tested as the exceptions above, but you should still be aware of it.
- Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
(1) Declarant is a member of family in question/intimately associated w/ it; and
(2) Statements are based on declarant’s personal knowledge of facts/knowledge of family reputation
Statements Offered Against Party Procuring Declarant’s Unavailability
- Statement of a person (now unavailable as a witness) is
admissible when offered against a party who has engaged/ acquiesced in wrongdoing that intentionally procured declarant’s unavailability. - Remember, statement meets this exception only if party’s motivation was to prevent declarant from testifying.
- If a party killed a declarant (or otherwise prevented them from testifying) for a different reason, declarant’s statement would not fall w/in this exception.
HEARSAY EXCEPTIONS—DECLARANT’S
AVAILABILITY IMMATERIAL
- The following exceptions to the hearsay rule do not require
that the declarant be unavailable. - These statements are considered sufficiently reliable to be admitted into evidence.
Excited Utterances
(1) Out-of-court statement relating to a startling event,
(2) Made while under the stress of the excitement from the event (b/f declarant had time to reflect upon it), is admissible.
Tip
Sometimes a “failed” dying declaration may “succeed” as an excited utterance (ex. where declarant is available/had some hope of survival)
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Present Sense Impressions
- Present sense impression is a statement that describes/ explains an event/condition, & is made while/immediately
after declarant perceives event/condition.
Tip
The excited utterance and present sense impression exceptions sometimes overlap. If a statement in an essay fact pattern appears to meet the requirements of both exceptions, go ahead and analyze the statement under both of them—you don’t need to pick just one.
Present State of Mind
- Statement of declarant’s then-existing (present) SOM (motive, intent, or plan) or emotional, sensory, or physical condition is admissible.
- However, except as to certain facts concerning declarant’s will, a statement of memory or belief is not admissible to prove truth of the fact remembered/believed.
Includes Statements of Intent
- “SOM” includes statements about declarant’s intent to do something in the future, including intent to engage in conduct w/ another person.
Includes Statement of Physical Condition
- Covers declarant’s statement— to anyone—about their current physical condition.
Statements Made for Purposes of Medical Diagnosis or Treatment
HIGH
- Statement is NOT excluded by the hearsay rule when statement:
(1) is made for & reasonably pertinent to medical diagnosis/treatment; AND
(2) describes medical history/symptoms (past/ present).
-Statements not relevant to medical diagnosis/ treatment (i.e. statements of fault) generally DO NOT fall within this hearsay exception. - Usually declarant will be describing their own condition, but this is not required (ex. declarant might be seeking medical assistance for a family member).
- Statements falling w/in this exception are usually made to medical personnel, but this is not an absolute requirement.
Tip
If a declarant tells an emergency room physician, “I was stabbed w/ a kitchen knife; my roommate did it,” only first portion of statement is pertinent to diagnosis or treatment. The second portion is inadmissible. (Note, however, that many fed cts will admit a statement in which a child abuse vic identifies their abuser in the course of treatment.)
Note
- There is a separate hearsay exception for statements of present physical condition, and this exception applies regardless of whether the declarant is seeking medical help
- The difference here is that “medical diagnosis or treatment” exception covers statements of past condition (& present condition).
-So when declarant makes a statement of present physical condition for purpose of medical diagnosis or treatment, it could technically be admitted under either exception.
Tip
- Statements will be admissible even if P was speaking to a physician who was retained for the sole purpose of testifying as an expert witness. Under the Federal Rules, declarations of past physical condition made to a doctor employed to testify are admissible under this hearsay exception. Making a statement for the purpose of obtaining a “medical diagnosis” includes a diagnosis for the purpose of giving an expert opinion.
Records of a Regularly Conducted Activity— Business Records
HIGH
- Business records are an exception to the hearsay rule.
- A business record is admissible if it is:
(1) a record of events, conditions, opinions, or diagnoses;
(2) kept in the regular course of business;
(3) made at or near the time of the matter described; (4) made by a person w/ knowledge of the matter
(5) is the regular practice of the business to make
such a record; AND
(6) OP does not show that record was made under circumstances indicating a lack of trustworthiness. - The witness who lays the business records foundation DOES NOT need be the author of the
record/attest to its accuracy.
• Courts have held that law enforcement reports are
inadmissible against a criminal defendant under the business records exception.
“Business”
- “Business” includes every business, organization,
occupation, or calling, including nonprofit organizations.
Entry Made in Regular Course of Business
To be admissible:
(1) record must have been made in the regular course of business and
(2) the business must regularly keep such records (entrant must have had a duty to make the entry).
- Self-serving accident reports prepared primarily for litigation are usually inadmissible.
Entry Made Near Time of Event
- Entry must be made at/near the time of the event.
Personal Knowledge
- Business record must consist of matters w/in personal knowledge of entrant, or w/in the knowledgevof someone w/ a duty to transmit such matters to entrant (generally, a co-worker).
Tip
Business records often present a multiple hearsay
problem. Watch for fact patterns involving
police reports or other incident reports that
contain statements from bystanders (outsiders who aren’t
part of the organization), who generally are not under a
business duty to convey the information. Although the
report itself (the outer hearsay—the entrant’s assertion that
the bystanders made these statements) may qualify as a
business record, the bystanders’ statements within it (the
inner hearsay) do not, and will need to fall within some
independent hearsay exception or exclusion (for example,
statement by opposing party). On the other hand, if the
report merely contains the entrant’s own observations, or
statements of persons under a business duty to report the
information, the entire report may be admissible under the
business records exception.
Required Foundation for Business Records
- Records’s authenticity must be established by a sponsoring witness, who can be a custodian of records/any person in the business who is knowledgeable about business’s recordkeeping (it does not need to be the author of the record in question).
- This can be accomplished by records custodian
(1) testifying that the record meets elements of business records exception, or
(2) certifying in writing that record meets elements of business records exception.
Business Records to Prove Nonoccurrence of Matter
A business record that meets the above requirements may
also be used to prove nonoccurrence/nonexistence of a matter if it was the regular practice of the business to record all such matters.
Court May Exclude for Lack of Trustworthiness— Burden on Opponent
Even if a business record meets all requirements, it still may
be excluded by ct if opponent makes a showing that circumstances of record indicate a lack of trustworthiness.
Official Records and Other Official Writings: Public Records and Reports
- Following records are admissible under gov/public records hearsay exception:
(1) record describing policies & practices of a public
office;
(2) observations made by someone in accordance
w/ his duties by law (except police reports in criminal
cases); and
(3) factual findings from a legally authorized
investigation (only admissible in civil cases/ against gov in criminal cases).
-HOWEVER, if OP shows that record was made under
circumstances indicating a lack of trustworthiness, record will NOT be admitted.
Tip
As with business records, make sure to test the
statements of outsiders (people who aren’t public
employees) contained in the report to make sure
they are admissible under some independent hearsay
exception or exclusion. If not, those statements will be
excluded even if the rest of the record is admitted.
Limitation on Law Enforcement Records as Public
Records and Business Records
As a general rule, police reports can be admitted
under the public records exception. Even officer’s
opinions & factual (not legal) conclusions can be
admitted under this exception. However, public records & reports generally are not admissible against D in a criminal case. This means that investigative reports by police, FBI, & other agencies are inadmissible in this situation. Additionally, most cts have held that these records can’t be admitted against a criminal D under the business records exception (business records exception can’t be
used as a “back door” to get around this limitation in public records exception).
Records of Vital Statistics
Records of vital statistics are admissible if reported to a
public office in accordance with a legal duty.
Statement of Absence of Public Record
Evidence in the form of testimony certification from custodian of public records (or other qualified person) that they have diligently searched & failed to find a record is admissible to prove that the matter was not recorded, or inferentially that matter did not occur. Note, however, that a criminal D has a right to confrontation & may demand presence of the person who prepared the certification. Thus, in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notifies defense at least 14 days before trial & defense does not object in writing within 7 days of receiving the notice (unless the court sets a different timeline).
Judgments
A certified copy of a judgment is always admissible proof that
such judgment has been entered. The problem is to what
extent the facts adjudicated in the former proceeding can be
introduced to prove facts in the present case.
Prior Criminal Conviction—Felony Conviction
Admissible
- A judgment of a felony conviction is admissible in
criminal & civil actions to prove any fact essential to the judgment. - Ex. if D was convicted of a felony assault, injured party could use judgment of conviction in a later civil lawsuit against same D to prove that assault happened.
- In a criminal case, however, gov may use judgment
for this purpose only against accused; against others, it may be used only for impeachment purposes.
Prior Criminal Acquittal—Excluded
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This hearsay exception does not apply to records of
prior acquittals. B/c the evidentiary standard is higher in a criminal case (proof beyond a reasonable doubt), so an acquittal is not conclusive as to whether D would be found liable in a civil case
Judgment in Prior Civil Case—Generally Excluded
- A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standards of proof.
- A civil judgment is generally also inadmissible in subsequent civil proceedings, subject to certain statutory exceptions—Ex. prior judgment may be admitted to prove matters of personal/family history, or boundaries of land
Recorded Recollection
- As previously discussed, there is a hearsay exception for recorded recollections.
- If a testifying witness’s memory cannot be revived, a party may introduce a memo/record that witness
made/adopted at/near time of event.
-See the Witnesses module for the required elements. - Remember record can only be read into evidence; it cannot be admitted as an exhibit unless offered
by an adverse party.
Learned Treatises
As discussed in the Witnesses module, statements contained in a learned treatise are admissible as substantive proof if
(1) treatise is established as reliable authority and
(2) excerpt is relied upon by an expert during direct examination/brought to expert’s attention on cross-examination.
- If admitted, such statements are read into evidence but are not received as an exhibit.
- This is a unique feature that recorded recollections (above) & learned treatises have in common.
Tip
Remember that learned treatises are admissible only
if introduced in the context of expert testimony. In
other words, if a party finds a learned treatise that
supports their case, they can’t offer it into evidence under this
exception unless there is an expert involved who either (1)
relies on the treatise or (2) is impeached with the treatise.
Ancient Documents
Under the Federal Rules, statements in any authenticated
document prepared before January 1, 1998, are admissible.
Documents Affecting Property Interests
- Statement in a doc affecting an interest in property
(deed, will, etc.) is admissible if statement is relevant to the doc’s purpose. - However, the exception will not apply if later dealings w/ property are inconsistent w/the truth of statement asserted/intent of doc
Reputation
- Reputation evidence is hearsay but testimony
is routinely admitted under exceptions that admit reputation evidence to prove:
(1) character; (2) personal or family history; (3) land boundaries; and (4) a community’s general history.
Family Records
- Statements of fact concerning personal/family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.
Market Reports
Market reports & other published compilations are admissible if generally used & relied upon by public/ persons in a particular occupation.
CONSTITUTIONAL ISSUES: Hearsay and the Confrontation Clause
Under the Confrontation Clause, a hearsay statement will not be admitted (even if w/in hearsay exception) where:
(1) Statement is being offered against accused in a
criminal case (no confrontation concern in civil cases);
(2) Declarant is unavailable;
(3) Statement was “testimonial” in nature; and
(4) Accused had no opportunity to cross-examine declarant’s testimonial statement prior to trial
- D forfeits their right of confrontation if they committed a wrongful act that was intended to keep witness from testifying.
“Testimonial” Statement
“Testimonial” evidence includes sworn testimony (such as
at a grand jury, prior trial, or preliminary hearing). However,
it also includes statements to law enforcement (sworn and
unsworn) and certain documents, as discussed below.
Statements Made to Law Enforcement
Whether a statement made in response to police interrogation is testimonial depends on its primary purpose.
To Aid in Ongoing Emergency—Not Testimonial
- If primary purpose of police interrogation is to
enable police to help in an ongoing emergency,
statements made in course of the interrogation are
nontestimonial (ex. 911 call during ongoing crime). - In determining whether an “ongoing emergency”
existed at time of interrogation, relevant factors include:
(1) the nature of dispute (public vs. private);
(2) whether perpetrator is still at large;
(3) scope of threat to vic & public; and
(4) type of weapon involved.
To Provide Information for Later Prosecution—
Testimonial
- When primary purpose of interrogation is to establish/prove past events potentially relevant to a
later criminal prosecution, statements are testimonial (ex. statements to police describing a crime after it
has concluded). - On the other hand, it has been held that statements by a young child abuse vic to a school teacher about abuse are not testimonial b/c primary purpose of the conversation is protection of child, not prosecution of perpetrator.
Affidavits or Written Reports of Forensic Analysis
- Affidavits, certificates, or other written reports that
summarize findings of forensic analysis & have effect of accusing targeted individual of criminal conduct (ex. fingerprint test results) are testimonial & cannot be admitted unless D previously had an opportunity to cross-examine the author of the report. - The testimony of analyst’s supervisor who was not involved in testing is not sufficient to admit results.
- However, such reports may be used for a nonhearsay purpose.
- Specifically, no confrontation violation occurs if a forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a nontestifying analyst’s report to demonstrate a partial basis for their opinion.
Due Process Rights
Hearsay rules and other exclusionary rules of evidence
cannot be applied where such application would deprive
the accused of their right to a fair trial or deny their right to
compulsory process.
