Hearsay

Question 1

When is nonverbal conduct considered hearsay? Would pointing to something in response to a question count? What about putting on a coat when its cold?

Answer 1

ONLY IF its intended to be an assertion. Yes, since pointing is usually intended to say “right there” or “over there.” No, since putting on a coat isn’t the same as telling someone “I’m cold.”

Question 2

Hearsay?: defendant on trial for murder argued that he was inflamed into passion, offers his victim’s out-of-court statement that she was cheating on him. Why?

Answer 2

No. Not offered for the truth of the matter asserted. It doesn’t matter if his wife was actually cheating on him—the point is the effect it had on the defendant, true or not.

Question 3

Hearsay?: statements that would put a person on notice of a potential hazard; statements of offer and acceptance of a contract, to show validity of a contract; a certificate of insurance, to show the legal relationship of insurer and insured. Why?

Answer 3

No, these are “verbal acts.” They are statements that have legal significance, and would be offered only for the legal significant—not for the truth of the statement itself (e.g., whether the hazard actually existed or not).

Question 4

What kinds of statements are listed in 801 as NOT definitional hearsay? Does the declarant have to testify and be subject to cross-examination?

Answer 4

(1) Prior statements (consistent, inconsistent, and identifications)
(2) Admissions by party opponent

Yes.

Question 5

What are the kinds of prior statements that don’t count as hearsay?

Answer 5

Prior consistent statements; prior inconsistent statements; prior identifications

Question 6

What are the requirements for admitting a prior inconsistent statement as non-hearsay?

Answer 6

The declarant has to testify and be subject to cross-examination.

The statement must have been given (1) under oath (2) at a trial, hearing, or other proceeding or in a deposition.

Question 7

What are the requirements for admitting a prior consistent statement as non-hearsay?

Answer 7

The declarant has to testify and be subject to cross-examination.

Must be offered to rebut a charge that the person is making up their story. (You use the prior consistent statement to show this isn’t the first time the witness has told this story.)

Question 8

What are the requirements for admitting a prior identification as non-hearsay?

Answer 8

The declarant has to testify and be subject to cross-examination. *Note that there is no requirement that the prior identification have been made under oath.

Question 9

What kind of admission by a party opponent is this?: Jewell case - daughter’s statement that her parents had been fighting before they drove onto train tracks

Answer 9

Individual

Question 10

What kind of admission by a party opponent is this?: a publisher’s printing of newspaper articles; answering “yes” to a question; acquiescence or silence, failure to deny something when the opportunity arises

Answer 10

Adoptive

Question 11

What kind of admission by a party opponent is this?: statements made by a personnel manager in connection with a decision to fire someone. Why is this NOT an admission by party opponent of that kind?: statements made by an employee in her resignation letter

Answer 11

Agent. Because the statement does not concern the person’s scope of employment (whatever the job was).

Question 12

When may a co-conspirator’s admission be admitted as an admission against a party opponent?

Answer 12

The statement must have been made by a co-conspirator in furtherance of the conspiracy. *Note that there is no requirement that the declarant be available to testify and subject to cross-examination (that’s not required for admissions by party opponent).

Question 13

Do admissions by an agent, authorized person, or co-conspirator have to be corroborated in any way?

Answer 13

Yes, you have to provide independent evidence establishing the relationship, e.g. evidence that the parties actually are co-conspirators—the statement alone is not evidence of the relationship itself.

Question 14

What are the five hearsay exceptions that apply if the declarant is NOT available to testify?

Answer 14

(1) Former testimony
(2) Statements against interest
(3) Statements under belief of impending death
(4) Statement of personal or family history
(5) “Forfeiture” - Statement against a party that caused the witness’s unavailability

Question 15

What are the requirements for the former testimony hearsay exception?

Answer 15

(1) Declarant is unavailable
(2) Statement must have been made under oath
(3) Statement is now offered against a party (or the predecessor in interest) who had a similar opportunity and motive to cross-examine the testimony (i.e., the statement can’t just come out of the blue as far as the current party is concerned—they or someone in their position must have had a chance to cross-examine the testimony the first time).

Question 16

What are the requirements for the statements against interest hearsay exception?

Answer 16

(1) Declarant is unavailable.
(2) The statement would only have been made if a reasonable person would have believed it to be true because the statement was against the person’s interest.
(3) IF against penal interest and in a CRIMINAL case, there must be corroborating evidence.

Question 17

What are some of the important hearsay exceptions, regardless of declarant’s availability?

Answer 17

Present-sense impression
Excited utterance
Then-existing mental, emotional, or physical condition ("state of mind")
Statements made for medical diagnosis/treatment
Recorded recollection
Business records
Public records
Ancient documents
Learned treatises

Question 18

What are the requirements for the present-sense impression hearsay exception? Does the witness have to be able to corroborate what the declarant saw?

Answer 18

(1) Describing or explaining only (no opinions)
(2) Immediately after perception of the event

No.

Question 19

What are the requirements for the excited utterance hearsay exception? Does the triggering event have to be an event in issue?

Answer 19

(1) Temporal requirement - must be made while the person was in a state of excitement because of that they just perceived

No.

Question 20

May someone’s statement be offered as non-hearsay to prove conduct in conformity with the statement? Can the statement be used to prove conduct by another person (joint conduct)?

Answer 20

Yes. Hillman doctrine: “When the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown.”

Some courts would say “yes” (e.g., Pheaster - out-of-court statement by kid to meet defendant to pick up weed was sufficient to show that both parties actually did meet), while others would require some amount of corroborating evidence of the other person’s conduct.

Question 21

Can statements made for medical diagnosis or treatment include: (1) patient –> doctor, (2) doctor –> patient, (3) patient –> non-treating physician ?

Answer 21

(1) Yes
(2) No
(3) Yes, if related to medical treatment

Question 22

What are the foundational requirements for a business record to be admitted as a hearsay exception?

Answer 22

(1) Statement is made by a person with knowledge
(2) At or near the time of the event
(3) In the course of regularly conducted business activity
(4) It was the business’s regular practice to keep such records

Question 23

What are the requirements for a public record to be admitted as a hearsay exception?

Answer 23

(1) Same as the requirements for business records:
(i) Statement is made by a person with knowledge
(ii) At or near the time of the event
(iii) In the course of regularly conducted business activity
(iv) It was the business’s regular practice to keep such records

(2) Can’t be law enforcement-related unless it’s ministerial
(3) Can’t have any trustworthiness issues

Question 24

What are the requirements for a learned treatise to be admitted as a hearsay exception?

Answer 24

(1) In conjunction with expert testimony (direct or cross)

2) The authority is reliable (expert can testify to this

Question 25

Can a learned treatise be read into evidence, or admitted as an exhibit?

Answer 25

May only be read into evidence. Can’t admit the whole thing as an exhibit—they’re too long.

Question 26

What hearsay exceptions are good to look for when dealing with immediate reactions to an event?

Why are these statements considered trustworthy?

Answer 26

Present-sense impression
Excited utterance
State of mind (“then-existing”)

Because the declarant doesn’t have time to filter their reaction or make something up.

Question 27

What are the (4) fundamental issues with witness testimony?

Answer 27

(1) Perception (did the witness actually see what they think they did?)
(2) Memory (did the witness recall the events correctly?)
(3) Narration (did the witness actually communicate what she thinks she did?)
(4) Sincerity (did the witness lie?)

Question 28

How old does a document have to be to qualify for the ancient documents hearsay exception?

Answer 28

20+ years

Question 29

For admissions by a party opponent: (1) Is that a hearsay exception, or not definitional hearsay? (2) Does the declarant have to be available to testify and subject to cross-examination?

Answer 29

(1) It’s not definitional hearsay. 801(d)(2).
(2) No. This is different from prior statements, which are the other kind of statements excluded from definitional hearsay. 801(d)(1).

Question 30

Is this hearsay?:

“I greeted the patient and he responded, ‘Hello, I am the emperor, Napoleon.’”

Answer 30

No, not offered for the truth of the matter asserted, i.e. not offered to show that the patient actually is Napoleon Bonaparte.

Don’t get these wrong!

Question 31

What result if an admissible statement is contained within inadmissible hearsay—will the embedded statement come in?

Answer 31

No. Hearsay within hearsay is inadmissible unless ALL layers are admissible.

Question 32

In what kinds of cases is a dying declaration allowed as a hearsay exception?

Answer 32

Only in homicide prosecutions and in civil cases (so, not in non-homicide criminal cases).

Question 33

What kind of interests are included in the statements against interest hearsay exception?

Answer 33

Pecuniary and penal

TX includes social