Hearsay

Question 1

Definition of Hearsay

Answer 1

AN OUT OF COURT STATEMENT OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED.

Question 2

What is the “truth of the matter asserted”?

Answer 2

a. Matter is referring to the matter in the statement

Question 3

Assertions

Answer 3

i. Nonassertive verbal conduct does not constitute a statement and is not subject to the hearsay rule. Under Federal Rule of Evidence 801, nonverbal conduct is not hearsay UNLESS THE SPEAKER INTENDED IT TO BE AN ASSERTION REGARDING THE MATTER SOUGHT TO BE PROVEN.

ii. Assertion: a forceful or positive declaration made intentionally

Question 4

Hearsay Chain of Inferences

Answer 4

declarant said it, declarant believed it, probably true

Question 5

US v. Zenni- Implied Assertions

Answer 5

i. Nonassertive verbal conduct does not constitute a statement and is not subject to the hearsay rule.

ii. Majority opinion: implied assertions are not hearsay because they are not actual assertive statements

Question 6

State v. Dullard Hearsay analysis

Answer 6

a. what is the out of court statement? FIND THE STATEMENT

b. what is the matter being asserted?

c. What is the statement being used for?

d. HEARSAY

Question 7

F.R.E. 801(d)(1) statements that are not hearsay

Answer 7

a. declarant witness’s prior statement

b. DECLARANT IS IN COURT

c. Declarant Witness’s Prior statement

Question 8

Declarant Witness’s Prior statement

Answer 8

i. is inconsistent with the declarant’s testimony was given under penalty of perjury at a trial, hearing, or other proceeding/deposition

ii. is consistent with the declarant’s testimony and is offered

iii. c. identifies a person as someone the declarant perceived earlier

Question 9

US v. Owens- Admission Doctrine

Answer 9

(1) The admission of a witness’ testimony about a currently held belief when the witness cannot remember the basis for the belief does not violate a criminal defendant’s rights under the Confrontation Clause; AND

(2) An out-of-court statement identifying a person is not hearsay if the declarant is subject to cross examination concerning the statement.

Question 10

Truth of the Matter Asserted- Effect on Listener Cases

Answer 10

1. Leake v. Haggerdt
2. Lyons Partnership v. Morris Costumes
3. US v. Feliz

Question 11

Scope of Usage at Introduction: FRE 105: Campbell v. Boston Scientific

Answer 11

i. admits evidence that is admissible against a party or for a purpose, but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly

ii. limiting instructions

Question 12

23. Performative Utterances

Answer 12

these are statements that change the reality of the world; THESE ARE NOT HEARSAY

Question 13

Non-Human Statements

Answer 13

Machines/animals cannot make hearsay

Question 14

The Confrontation Clause

Answer 14

a. to exclude other otherwise admissible hearsay, constitutional constraint

b. to require admission of other inadmissible hearsay (due process concerns)

c. CONFRONTATION CLAUSE IS ONLY FOR DEFENDANTS, INDIVIDUAL RIGHT NOT THE STATE

Question 15

CHECKLIST FOR CONFRONTATION CLAUSE ISSUES

Answer 15

a. criminal case

b. evidence is being introduced against the defendant

c. declarant is unavailable

d. no prior/(current?) opportunity for confrontation

e. THE THING YOU HAVE TO BE LOOKING AT IS HEARSAY (common law definition of hearsay)

f. …that is testimonial
i. testimony, affidavits, custodial examinations
ii. declarants would reasonably expect to be used prosecutorially
iii. oath helps but is not dispositive

Question 16

Crawford v. Washington: Emergencies & Testimony

Answer 16

information to resolve emergency is not testimonial

Question 17

FRE 801(d)(2) Admissions

Answer 17

ADMISSIBLE
i. need not be inculpatory
ii. declarant doesn’t have to be unavailable
iii. does not require personal knowledge

Question 18

Adoptive Admissions

Answer 18

one the part manifested that it adopted or believed to be true

WHEN SOMEONE ELSE SAYS IT AND YOU AGREE

Question 19

Authorized Admissions

Answer 19

was made by a person whom the party authorized to make a statement on the subject

Question 20

Agent and Employee Admissions, Spokesperson

Answer 20

was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed
1. has to be within the scope of relationship
2. must be during the time of the relationship

Question 21

Co-Conspirator Admissions

Answer 21

was made by the party’s co conspirator during and in furtherance of the conspiracy

Question 22

Salvitti v. Thorpe: Residual Exception to Hearsay

Answer 22

fairness, you can’t cross examine yourself, trustworthy/reliable?

Question 23

FRE 805 Multiple Hearsay

Answer 23

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statement conform with an exception

Question 24

FRE 803(1)(2) Spontaneous and contemporaneous utterance

Answer 24

i. a statement describing or explaining an event or condition made immediately after the declarant perceived it

ii. a statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused

Question 25

FRE 803(3) Then-Existing State of Mind

Answer 25

A statement of the declarant’s then existing state of mind (motive, intent, or plan) or emotional sensory or physical condition (mental feeling, pain, bodily health) but not having to do with the memory or belief

Question 26

Record Recollection Exception to Hearsay

Answer 26

i. is on a matter the witness once knew about but now cannot recall

ii. was made or adopted by the witness when fresh in the witness’s mind

iii. accurately reflect the witness’s knowledge

iv. if admitted the record may be read into evidence but may be received as an exhibit only if offered by an adverse party

Question 27

FRE 803(6) Business Records

Answer 27

A record of an act, event, condition, opinion, or diagnosis if:

a.	made at the time with someone with personal knowledge

b.	the record was kept during regular business operation

c.	regular practice of the activity 

d.	all these conditions are shown by the testimony of the custodian or other qualified witness

e.	the opponent does not show that the source of information or method indicate lack of trustworthiness

Question 28

FRe 803(7) Absence & Business Records

Answer 28

(7) absence of a record of a regularly conducted activity

Getting people who are not involved in the accident to do a report, increasing the likelihood that you’re preserving records for a legitimate business operation vs. preservation for litigation

Question 29

Public Records Exception

Answer 29

A record or statement of a public office, such as:

1. office activities
2. a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by LE personnel
3. in a civil case or against gov in a criminal case, factual findings from a legally authorized investigation

Question 30

State v. Davis: Record Exception Preemption

Answer 30

Court says public records exception preempts the business record exception

Question 31

UNAVAILABLE DECLARANT EXCEPTIONS

Answer 31

a. privilege
b. refuses to testify despite court order
c. not remembering
d. death
e. is absent and proponent has not been able to by reasonable means to procure the declarant’s attendance

Question 32

Former Testimony Exception to Hearsay

Answer 32

i. declarant unavailable

ii. given as witness at a trial hearing

iii. now offered against a party who had—in civil case whose predecessor in interest had – opportunity and similar motive to develop it by direct cross and redirect

Question 33

Dying Declaration Exception to Hearsay

Answer 33

Statement under the belief of imminent death
i. in a prosecution for homicide or in a civil case, declarant on death’s doorstep or while believing the declarant’s death to be imminent

ii. Supposed to be super narrow

iii. bank robbery case, “tell them he had nothing to do with it” not a homicide so no dying declaration exception

Question 34

Statement Against Interest Exception to Hearsay

Answer 34

Inculpatory evidence; we don’t say things that endanger ourselves

Question 35

FRE 804 Hearsay Exception for Forfeiture

Answer 35

Statement offered against a party that wrongfully caused the declarant’s unavailability; defendant has to INTEND THE INAVAILABILITY

Question 36

FRE 807 Residual Exception to Hearsay

Answer 36

Catches everything that is not 803/804 exception BUT NOT A CATCH ALL (extremely narrow and requires testimony to be very important and very reliable)

DO NOT WALK THROUGH THIS IS EVERY HEARSAY ANALYSIS BECAUSE ITS SO RARELY GRANTED

Question 37

Machine Data & Hearsay

Answer 37

a. data sheets are not testimonial so not hearsay. No opinions or facts by the expert specifically

b. it is not a human. dogs can’t make hearsay, neither can machines.

c. if a human analyzing machine data, that’s hearsay (melendez-Diaz, Bullcoming)