Hearsay

Question 1

Hearsay question approach

Answer 1

1. Isolate the statement (underline)
2. Determine who the declarant is (underline)
3. Determine whether the evidence is being offered for the truth
   -Trying to prove contents of the statement or something else?
4. Determine if the statement falls under an exemption or exception

Question 2

Hearsay Definition

Answer 2

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

Question 3

Hearsay within hearsay

Answer 3

Admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.

Question 4

Non-hearsay

Answer 4

1. Legally operative facts (i.e., words of contract or defamatory words)
2. Effect on listener/reader (i.e., to prove notice in a negligence case)
3. Circumstantial evidence of declarant’s state of mind (to prove someone’s insanity or knowledge - “I am Elvis”)
   -Differentiate from state of mind exception, which reflects directly on
   the declarant’s state of mind “I am going on a trip tomorrow/I feel sad”

Question 5

Hearsay Exemptions (non-hearsay)

Answer 5

Statements that meet the basic definition of hearsay, but are specifically exempted from the hearsay definition. Admissible as substantive evidence:

1. Admission by a party-opponent
2. Prior inconsistent statement
3. Prior consistent statement
4. Prior identification

Question 6

Admission by a party-opponent (non-hearsay)

Answer 6

Anything said by a party can be used against him by the opposing party
-Adoptive statements (silence when statement was heard and not denied, except for accusation by police to criminal defendant)
-A party’s formal judicial statements in pleadings, stipulations, etc.
-Vicarious statements (authorized spokesperson, agents and employees within scope of business and relationship, partners, co-conspirators in furtherance of the conspiracy)
-Co-parties are insufficient

Question 7

Prior inconsistent statement (non-hearsay)

Answer 7

Admissible both to impeach and as substantive evidence when made:
-Under oath at a prior proceeding
-By a testifying witness who is subject to cross examination

Question 8

Prior consistent statement (non-hearsay)

Answer 8

Admissible when made by a testifying witness who is subject to cross-examination when:
1. offered to rebut a charge that the witness is lying or exaggerating because of a motive which arose after the statement was made; or
2. offered to rehabilitate a witness whose credibility has been impeached on another ground

Question 9

Prior Identification (non-hearsay)

Answer 9

A prior identifying statement made by a testifying witness who is subject to cross examination

Question 10

Hearsay Exceptions - Declarant Unavailable

Answer 10

These are hearsay, but are admissible because they are especially necessary or reliable:
1. Former Testimony
2. Dying Declarations
3. Statements against Interest
——————————————–
4. Statements of Personal or Family History
5. Statements Offered Against Party Procuring Declarant’s Unavailability

Grounds for unavailability (PRISM)
1. Privilege
2. Refusal to testify
3. Incapacity
4. Subpoena (failure to comply)
5. Memory (lack of)

Unavailability is also a confrontation clause requirement

Question 11

Former Testimony (unavailable exception)

Answer 11

Admissible when:
1. Statement made under oath
2. Opposing party had opportunity and similar motive to develop declarant’s testimony at prior proceeding

Question 12

Dying Declaration (unavailable exception)

Answer 12

Admissible when:
1. Statement made while declarant believed death was imminent
2. Statement must concern cause/circumstances of death
3. Only applies in CIVIL or HOMICIDE cases

Question 13

Statement Against Interest (unavailable exception)

Answer 13

Admissible when:
1. Statement is against declarant’s penal, pecuniary, or proprietary interest when made
2. Requires personal knowledge

*Distinguish from admission by party-opponent, which is a statement made by a party rather than a declarant and does not require personal knowledge or unavailability or have to be against its interest

Question 14

Statement of personal or family history (unavailable exception)

Answer 14

Admissible when:
1. Made by a family member or one intimately associated with the family
2. About the family history (i.e., birth, death, or marriage)

Question 15

Statement offered against party procuring declarant’s unavailability (unavailable exception)

Answer 15

Admissible when:
1. Offered against a party who intentionally made the declarant unavailable

Question 16

Hearsay Exceptions - Availability Irrelevant

Answer 16

These are hearsay, but are considered sufficiently reliable to be admitted into evidence:

1. Present Sense Impressions
2. Excited utterances
3. Statement of then-existing physical, emotional, or mental condition
4. Medical diagnosis or treatment
5. Past recollection recorded
6. Business record exception
7. ## Public record exception
8. Judgments
9. Ancient Documents
10. Documents Affecting Property Interests
11. Learned Treatises
12. Reputation
13. Family Records
14. Market Reports
15. Records of Vital Statistics

Question 17

Present sense impression (hearsay exception)

Answer 17

Statement made concurrently while perceiving an event.
-Requires personal knowledge
-Policy: unlikely to be fabricated immediately after perceiving an event

Question 18

Exited utterance (hearsay exception)

Answer 18

Statement made while under stress of excitement of startling event
-Requires personal knowledge
-Look for exclamation marks
-Policy: stress precludes the capacity to fabricate

Question 19

Statements of then-existing physical, emotional, or mental condition (hearsay exception)

Answer 19

Statement of then-existing physical, emotional, or mental condition usually offered to establish intent
-Look for present tense of verb (“I am going to Colorado” or “My back hurts”)

Question 20

Medical Diagnosis or Treatment (hearsay exception)

Answer 20

Statement made for past or present physical condition or its cause for the purpose of diagnosis or treatment
-Statements that admit fault are generally inadmissible

Question 21

Past Recollection Recorded (hearsay exception)

Answer 21

A recorded statement by a witness who now cannot remember the facts:
-Must have attempted to fresh recollection and failed
-Writing must have been made or adopted by the witness when it was fresh on her mind
-Witness reads the words into evidence
-BUT only the opposing party can offer the writing as an exhibit

Question 22

Business records or absence thereof (hearsay exception)

Answer 22

A record that is made:
-In the regular course of business
-By a person with personal knowledge and a business duty to transmit
-At the time of the event

Lack of a business record may be used to show the nonoccurence of an event

Question 23

Public records or absence thereof (hearsay exception)

Answer 23

A public agency record made pursuit to a duty imposed by law or the factual findings of an official investigation
-Exception: police reports offered against criminal defendants (motive to lie)
-Includes records of vital statistics that are reported to a public office in accordance with a legal duty
-Lack of a public record may be used to show the nonoccurence of an event

Question 24

Judgments (hearsay exception)

Answer 24

A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment
-In criminal cases, only admissible against the accused (not alleged victim)

Question 25

Ancient documents (hearsay exception)

Answer 25

Admissible:
-Statements in authenticated documents prepared before 1998

*Different than 20 year threshold for authentication purposes

Question 26

Documents affecting property interests (hearsay exception)

Answer 26

Statements in a document affecting an interest in a property
-i.e., deed or will

Question 27

Learned treatises (hearsay exceptiion)

Answer 27

Statements from authoritative works admissible when:
1. Called to attention of expert witness
2. Established as reliable authority

*Not admissible unless used on direct or cross examination of an expert witness

Question 28

Reputation (hearsay exception)

Answer 28

Reputation evidence concerning:
1. A person’s character
2. Personal or family history
3. Land boundaries
4. A community’s general history

Question 29

Family records (hearsay exception)

Answer 29

Statements of fact bound in family Bibles, jewelry engravings, tombstones, etc.

Question 30

Market reports (hearsay exception)

Answer 30

Admissible:
Market reports and public compilations generally relied on by the public of persons of a particular occupation.

Question 31

Residual hearsay exception

Answer 31

Hearsay statements that are strictly necessary and possess sufficient guarantees of trustworthiness are admissible if not covered by a specific exception

Question 32

Confrontation Clause

Answer 32

The Confrontation Clause makes a statement allowed by a hearsay exception inadmissible when it is:
1. Offered against a criminal defendant
2. Declarant is unavailable
3. The statement is testimonial
i.e., affidavit or conversation with law enforcement (except not in emergency)
4. Defendant had no opportunity to cross-examine the statement prior to trial