Hearsay Flashcards
Definition of Hearsay
AN OUT OF COURT STATEMENT OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED.
What is the “truth of the matter asserted”?
a. Matter is referring to the matter in the statement
Assertions
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
Hearsay Chain of Inferences
declarant said it, declarant believed it, probably true
US v. Zenni- Implied Assertions
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
State v. Dullard Hearsay analysis
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
F.R.E. 801(d)(1) statements that are not hearsay
a. declarant witness’s prior statement
b. DECLARANT IS IN COURT
c. Declarant Witness’s Prior statement
Declarant Witness’s Prior statement
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
US v. Owens- Admission Doctrine
(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.
Truth of the Matter Asserted- Effect on Listener Cases
- Leake v. Haggerdt
- Lyons Partnership v. Morris Costumes
- US v. Feliz
Scope of Usage at Introduction: FRE 105: Campbell v. Boston Scientific
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
- Performative Utterances
these are statements that change the reality of the world; THESE ARE NOT HEARSAY
Non-Human Statements
Machines/animals cannot make hearsay
The Confrontation Clause
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
CHECKLIST FOR CONFRONTATION CLAUSE ISSUES
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
Crawford v. Washington: Emergencies & Testimony
information to resolve emergency is not testimonial
FRE 801(d)(2) Admissions
ADMISSIBLE
i. need not be inculpatory
ii. declarant doesn’t have to be unavailable
iii. does not require personal knowledge
Adoptive Admissions
one the part manifested that it adopted or believed to be true
WHEN SOMEONE ELSE SAYS IT AND YOU AGREE
Authorized Admissions
was made by a person whom the party authorized to make a statement on the subject
Agent and Employee Admissions, Spokesperson
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
Co-Conspirator Admissions
was made by the party’s co conspirator during and in furtherance of the conspiracy
Salvitti v. Thorpe: Residual Exception to Hearsay
fairness, you can’t cross examine yourself, trustworthy/reliable?
FRE 805 Multiple Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statement conform with an exception
FRE 803(1)(2) Spontaneous and contemporaneous utterance
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
FRE 803(3) Then-Existing State of Mind
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
Record Recollection Exception to Hearsay
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
FRE 803(6) Business Records
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
FRe 803(7) Absence & Business Records
(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
Public Records Exception
A record or statement of a public office, such as:
- office activities
- a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by LE personnel
- in a civil case or against gov in a criminal case, factual findings from a legally authorized investigation
State v. Davis: Record Exception Preemption
Court says public records exception preempts the business record exception
UNAVAILABLE DECLARANT EXCEPTIONS
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
Former Testimony Exception to Hearsay
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
Dying Declaration Exception to Hearsay
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
Statement Against Interest Exception to Hearsay
Inculpatory evidence; we don’t say things that endanger ourselves
FRE 804 Hearsay Exception for Forfeiture
Statement offered against a party that wrongfully caused the declarant’s unavailability; defendant has to INTEND THE INAVAILABILITY
FRE 807 Residual Exception to Hearsay
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
Machine Data & Hearsay
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)
