Hearsay Flashcards
Hearsay Rule
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. If a statement is hearsay, it is inadmissible unless it falls under an exception to the rule.
* Statement: oral assertion, written assertion, or nonverbal conduct *intended as an assertion**
CEC: Hearsay is excluded from Prop 8 so ordinary rules of evidence apply. California does not have hearsay exclusions, only hearsay exceptions.
Multiple Hearsay
If a statement contains multiple layers of hearsay, it will only be admissible as substantive evidence if each of the layers fall within a hearsay exception or is nonhearsay.
Hearsay Exclusions (Nonhearsay)
* FRE: Statement by Opposing Party
* CEC: Admission by Party Opponent
Any hearsay statement made by a party and offered in evidence against that party is admissible.
* Statement doesn’t need to be against speaker’s interests.
Special Types
(i) Adoptive Statements (admissions by silence)
* Party heard statement, had capacity to deny it, and didn’t deny it even though a reasonable person would’ve denied it if it was untrue
(ii) Vicarious Statements (statement by non-party is attributable to party because of special relationship between them)
* Co-Conspirator Admission: Admission by a conspirator made in furtherance of the conspiracy while participating in the conspiracy can be offered against co-conspirator
* Principal/Agent: statement by agent concerning matter within scope of agency while agency relationship existed can be offered against principal (no CEC equivalent)
* Authorized spokesperson
Hearsay Exclusions (Nonhearsay) - Statements by Testifying Witness
Prior Identification by Witness
* FRE: Admissible as substantive evidence if witness (a) currently testifying and (b) is subject to cross-examination
* CEC: Witness must have made identification while memory was fresh and confirm in court that they made prior identification/truly reflected opinion at the time
Prior Inconsistent Statement: To impeach witness’s credibility, party can show witness has made inconsistent statements regarding a material part of testimony if statement is relevant and proper foundation has been laid (currently testifying, subject to c-x)
* FRE: Admissible as substantive evidence if statement was made under oath at prior proceeding
* CEC: Admissible as substantive evidence even if NOT made under oath at prior proceeding
Prior Consistent Statement: Admissible if offered to rebut attack on witness’s credibility based on improper motive, if statement made before motive to lie arose (FRE and CEC)
* FRE: Admissible to rehabilitate witness impeached on another ground
“Proper Foundation”: currently testifying and given opportunity to explain or deny allegedly inconsistent statement during cross-examination
Hearsay Exclusions (Nonhearsay) - Not offered to prove the truth of the matter asserted
(a) Effect on the Listener/Reader: A statement is nonhearsay/exception to hearsay if it’s used to show the statement’s effect on the listener/reader
(b) Verbal Acts/Words of Independent Legal Significance: Words in contract or defamation case
(c) Statements offered as circumstantial evidence of declarant’s state of mind
* Used to prove insanity or knowledge
* Ex. D says “I am Dracula” after biting victim (used to prove D is insane)
Hearsay Exception - Present State of Mind or Physical Condition
A statement that describes the declarant’s then-existing state of mind or physical/mental condition is admissible to show the condition or state of mind.
* Statements expressing belief or memory are not admissible
* Statement of intent can be admissible as circumstantial evidence that declarant acted on that intent (“I’m going to ma’s at 3 pm tmrw”)
Physical Condition: Declarant’s statement as to her present bodily condition is admissible as hearsay exception.
Hearsay Exceptions (Unavailability Required) - Dying Declaration
FRE: Statement is admissible if:
* Declarant is unavailable (can still be alive)
* It was made while believing death was imminent
* Concerns circumstances of what she believed was her impending death
CEC: Statement is admissible if:
* Declarant is DEAD
* Was made while believing death was imminent/impending
* Is about what killed him
Hearsay Exceptions (Unavailability Required) - Statement Against Interest
Statement made by declarant that was against his pecuniary, proprietary, or penal interest when made is admissible IF:
* (i) Declarant is unavailable
* (ii) Declarant had personal knowledge of facts
* (iii) Declarant was aware statement was against interest and had no motive to misrepresent
FRE: In criminal case, if statement subjects D to criminal liability, offering party must offer corroborating circumstances showing that statement is trustworthy
CEC: Includes statements against social interest that risks making declarant an object of “hatred, ridicule, or social disgrace in community”
Hearsay Exceptions (Unavailability Required) - Former Testimony
Hearsay - Confrontation Clause
Even if hearsay exception applies, a statement is not admissible where:
* (i) statement is being offered against criminal defendant
* (ii) declarant is unavailable
* (iii) statement is testimonial in nature (ex. statement made during police interrogation)
* (iv) defendant had no opportunity to cross-examine declarant’s statement before trial
Testimonial Statement:
* Statements made to law enforcement in response to police interrogation if primary purpose was obtain information for later criminal prosecution
* Exception: If primary purpose of police interrogation was to help with ongoing emergency (911 call), not testimonial.
Statement Describing Infliction/Threat of Physical Injury (CEC only)
A statement made by an unavailable declarant that describes or explains the infliction/threat of injury is admissible if:
* Statement made near time of infliction/threat
* Under circumstances that indicate its trustworthiness
* In writing OR made to law enforcement/medical personnel
Hearsay Exception
* FRE: Excited Utterance
* CEC: Spontaneous Statement
Statement made by a declarant during/soon after:
* (i) a startling event
* (ii) while under the stress of the excitement produced by the event
* (iii) concerns immediate facts of event
FRE and SEC same except for name
Hearsay Exception
* FRE: Present Sense Impression
* CEC: Contemporaneous Statement
Present Sense Impression:
* (i) Statement describes/explains event or condition
* (ii) Statement made contemporaneously with or immediately after perceiving the event/condition
Contemporaneous Statement
* (i) Statement explain declarant’s own conduct
* (ii) Statement made while declarant was engaged in that conduct
Hearsay Exception - Business Records
Statements within a business record (of events, conditions, opinions, or diagnoses) are admissible if:
(i) the record was regularly kept in the ordinary course of business
(ii) record was made at or near the time of the event
(iii) either the recorder had personal knowledge of the event OR a person with a business duty to transmit the matter to the recorder did
* Ex. Both are employees of same business
(iv) Record was authenticated by a custodian of records who either (i) testifies that the above exceptions are met or (ii) certifies this in writing
* CEC: Custodian must testify to identity of record and its creation and business record doesn’t include opinions or diagnoses
Hearsay Exception - Recorded Recollections
If witness has insufficient recollection of event to be able to testify fully and accurately, even after referring to a memorandum that has been given to her on the stand, the writing itself may be read into evidence once a proper foundation is laid for its admissibility. Foundation requires that:
- (i) witness had personal knowledge of the facts in the writing;
- (ii) the writing was made or adopted by the witness;
- (iii) the writing was made while the matter was fresh in the witness’s mind;
- (iv) the writing is accurate; and
- (v) the witness has insufficient recollection to testify fully and accurately.
The writing may be read into evidence and heard by the jury, but is not itself admitted as an exhibit unless introduced by the adverse party.
