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.