Hearsay Flashcards
Hearsay question approach
- Isolate the statement (underline)
- Determine who the declarant is (underline)
- Determine whether the evidence is being offered for the truth
-Trying to prove contents of the statement or something else? - Determine if the statement falls under an exemption or exception
Hearsay Definition
An out-of-court statement offered to prove the truth of the matter asserted.
Hearsay within hearsay
Admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule.
Non-hearsay
- Legally operative facts (i.e., words of contract or defamatory words)
- Effect on listener/reader (i.e., to prove notice in a negligence case)
- 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”
Hearsay Exemptions (non-hearsay)
Statements that meet the basic definition of hearsay, but are specifically exempted from the hearsay definition. Admissible as substantive evidence:
- Admission by a party-opponent
- Prior inconsistent statement
- Prior consistent statement
- Prior identification
Admission by a party-opponent (non-hearsay)
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
Prior inconsistent statement (non-hearsay)
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
Prior consistent statement (non-hearsay)
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
Prior Identification (non-hearsay)
A prior identifying statement made by a testifying witness who is subject to cross examination
Hearsay Exceptions - Declarant Unavailable
These are hearsay, but are admissible because they are especially necessary or reliable:
1. Former Testimony
2. Dying Declarations
3. Statements against Interest
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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
Former Testimony (unavailable exception)
Admissible when:
1. Statement made under oath
2. Opposing party had opportunity and similar motive to develop declarant’s testimony at prior proceeding
Dying Declaration (unavailable exception)
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
Statement Against Interest (unavailable exception)
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
Statement of personal or family history (unavailable exception)
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)
Statement offered against party procuring declarant’s unavailability (unavailable exception)
Admissible when:
1. Offered against a party who intentionally made the declarant unavailable
Hearsay Exceptions - Availability Irrelevant
These are hearsay, but are considered sufficiently reliable to be admitted into evidence:
- Present Sense Impressions
- Excited utterances
- Statement of then-existing physical, emotional, or mental condition
- Medical diagnosis or treatment
- Past recollection recorded
- Business record exception
- ## Public record exception
- Judgments
- Ancient Documents
- Documents Affecting Property Interests
- Learned Treatises
- Reputation
- Family Records
- Market Reports
- Records of Vital Statistics
Present sense impression (hearsay exception)
Statement made concurrently while perceiving an event.
-Requires personal knowledge
-Policy: unlikely to be fabricated immediately after perceiving an event
Exited utterance (hearsay exception)
Statement made while under stress of excitement of startling event
-Requires personal knowledge
-Look for exclamation marks
-Policy: stress precludes the capacity to fabricate
Statements of then-existing physical, emotional, or mental condition (hearsay exception)
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”)
Medical Diagnosis or Treatment (hearsay exception)
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
Past Recollection Recorded (hearsay exception)
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
Business records or absence thereof (hearsay exception)
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
Public records or absence thereof (hearsay exception)
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
Judgments (hearsay exception)
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)
