Hearsay

Question 1

analysis of hearsay issues

Answer 1

1. determine the assertion or conduct serving as the out of court statement
2. determine who is the declarant
3. was statement made other than while testifying in this proceeding?
4. determine the purpose for which the evidence is being offered
   –if for its truth = hearsay
   –if other non-truth purpose = non-hearsay
5. apply possible hearsay exceptions

Question 2

hearsay

Answer 2

an out of court statement offered to prove the truth of the matter asserted.

*inadmissible unless an exception applies

Question 3

Who qualifies as a declarant for hearsay?

Answer 3

Must be a human being. Evidence from animals and machines are not statements (e.g. dog barking or machine printout)

Question 4

What is considered a statement for hearsay purposes?

Answer 4

-Oral assertion;

-Written assertion; or

-Nonverbal conduct/gestures, if the person intended it as an assertion (e.g. shaking your head “yes”)

Question 5

proving the truth of the matter asserted

Answer 5

do the actual words that are spoken in the statement needed to be believed for the testimony to be relevant?

Question 6

evidence that is no offered for its truth (non-hearsay)

Answer 6

(C-ELVIS)

1. statement of Capacity to see, hear, speak, etc.
2. Effect on the listener (shows the listener knew or to explain their motive, intent, actions)
3. Legally operative facts (words like will, deed)
4. Verbal acts (clarifies ambiguous conduct)
5. Impeachment
6. State of mind (ex. witness testified declarant said “i can fly” in an insanity hearing to show declarant’s insanity, not that he can fly)

Question 7

Hearsay exemptions

Answer 7

out of court statements offered for their truth that are non-hearsay and admitted as substantive evidence.

1. Statements by a Party Opponent
2. Prior Statements

Question 8

Statements by a party opponent

Answer 8

(non hearsay, exemption)

1. statement by a named party
2. adoptive admission
3. authorized admission
4. employee admission
5. co-conspirator’s admission

Question 9

statement by a named party

Answer 9

a statement of a party offered against him by his opponent that is relevant

example:
witness testifies “after the accident, the D said “I was speeding” used by plaintiff at personal injury trial

Question 10

adoptive admission

Answer 10

can be by words, conduct, or silence

there must be evidence sufficient to show that the party heard and understood the statement and adopted it as their own

“lets rob a bank”, either “yeah” or nods head

Question 11

authorized admission

Answer 11

a statement by a party’s agent or representative

Question 12

employee admission

Answer 12

a statement of a party’s employee offered against the party

the statement must:
1. be made during the existence of the employment relationship; and
2. concern a matter within the scope of employment

Question 13

co-conspirator’s statements

Answer 13

statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators

requirements:
1. the declarant was a member of the conspiracy
2. the statement was made “in furtherance of” the conspiracy, and
3. the statement was made during the existence of the conspiracy

Question 14

Prior Statements

Answer 14

1. prior inconsistent statement
2. prior consistent statement
3. statements of prior identification

*to be exempted, all three requires that the declarant must:
-testify at the trial or hearing, and
-be subject to cross-examination concerning the statement

Question 15

when is a prior inconsistent statement admissible as both non-hearsay and evidence to impeach?

Answer 15

If:

1. The declarant is available to testify and subject to cross-examination; and
2. The prior inconsistent statement was a sworn statement under penalty of perjury at a prior trial, hearing, deposition, or other legal proceeding

Question 16

When is a prior inconsistent statement ONLY admissible to impeach?

Answer 16

If the statement was not made under oath, it will only be allowed to impeach.

Question 17

when is a prior consistent statement admissible as non-hearsay?

Answer 17

If:

Declarant is a currently testifying witness and subject to cross-examination; and either:

1. Statement is offered to rebut charge that declarant recently fabricated testimony or was subject to undue influence or motive; or
2. Statement is to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Question 18

when is a prior identification admissible as non-hearsay?

Answer 18

Admissible as substantive evidence if:

1. Declarant is a currently testifying witness and subject to cross-examination; and
2. Witness identified the person prior to trial

Question 19

Hearsay exceptions: availability of declarant is immaterial

Answer 19

1. present sense impression
2. excited utterance
3. Statement of Then-Existing Mental, Physical, or Emotional Condition
4. statements for medical diagnosis or treatment
5. past recollection recorded
6. records of regularly conducted activity (business records exception)
7. absence of entry in a business record
8. public records and reports
9. records of vital statistics
10. absence of entry in a public record
11. family and personal history records
12. records, or statements in documents, that affect an interest in property
13. statements in ancient documents
    14.. market reports, commercial publications
14. learned treatises
15. reputation concerning personal and family history
16. reputation concerning boundaries and general history
17. reputation concerning character
18. judgment of previous (criminal) conviction
19. judgments involving personal, family, or general history, or a boundary

Question 20

Present Sense Impression hearsay exception

Answer 20

a statement made by the declarant:
-describing or explaining an event or condition
-made while or immediately after perceiving it
(can be oral or in writing)

examples:
-witness testifies to seeing a hit and run and immediately wrote down the license plate #
-witness testifies that the person next to them hollered “that car’s driving on the wrong side of the road”
-someone who was just outside, walks inside and says “the sky is so bright you can see all the stars”

Question 21

Excited Utterance hearsay exception

Answer 21

a statement relating to a startling event, made while the declarant was under the stress of excitement caused by the event or condition.

requirements:
-a startling event
-personal knowledge required; and
-statement made while still under the stress of the event (need not be immediate)

Question 22

Statement of then-existing mental, physical, or emotional condition

hearsay exception

Answer 22

a statement of the declarant’s then-existing mental, physical, or emotional condition is admissible if relevant to show the declarant’s state of mind

*Statements of memory or belief about the events are inadmissible. The statements must be about what the declarant was experiencing at the time it was said.

example:
During the damages phase of a trial against a hospital, a witness can testify that Plaintiff repeatedly said, “My legs are killing me. I’m afraid I’ll never walk again” to prove the Plaintiff was suffering physical and emotional pain at the time and to support Plaintiff’s claim that he asked repeatedly for pain medication and emotional health counseling which the hospital didn’t provide.

Question 23

statements made for purposes for medical diagnosis or treatment

hearsay exception

Answer 23

statements made for the purposes of medical diagnosis or treatment describing medical history, past or present symptoms, pain or sensation, or the like are admissible.
*statement must be one that is useful for diagnosis and treatment.

*statement can be made to a medical professional or a family member

Question 24

Past Recollection Recorded

hearsay exception

Answer 24

used where the witness lacks current memory of the event.

prerequisite: must have attempted (and failed) to refresh the witness by a leading question or writing

A recorded recollection is a record that is about something that the witness once knew, but the witness cannot recall the matter well enough to testify fully or accurately. The record must have been made or adopted by the witness at a time when the matter was fresh in the witness’s memory, and the record must accurately reflect the witness’s knowledge. The recorded recollection exception may apply where the witness is not the author of the record if the witness adopted it by examining and affirming the record at a time when the memory was fresh.

Question 25

requirements for past recollection recorded

Answer 25

1. writing/record is read into evidence
   -the writing itself is not received as an exhibit unless offered by the adverse party
2. the writing must have been made “while the matter was fresh in the witness’s mind”
3. the witness must testify that the writing accurately reflects the witness’s prior knowledge

Question 26

rights of opposing party for past recollection recorded

Answer 26

-inspect the writing;

-cross-examine with it;

-show it to the jury for comparison; and

-introduce relevant portions into evidence.

Question 27

business records hearsay exception

Answer 27

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

1. The record was made in the regular course of business;
2. The record was made “at or near the time” of the matter recorded;
3. Record was made by an employee of the business with knowledge of the matter recorded

*the records cannot be made solely in anticipation of litigation

examples:
Admissible: Sales receipt, hospital records, payroll records.
NOT Admissible: Personal diaries, personal calendars, personal bank records.

Question 28

absence of entry in a business record

hearsay exception

Answer 28

may be admitted to show the matter did not occur or exist if:

1. Records were regularly kept for a matter of that kind; and
2. opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness

*Foundation: The witness must testify to being familiar with the records, that the witness performed a diligent search, and that no record of the event was found.

Question 29

public records and reports

hearsay exception

Answer 29

A record or statement of a public office is admissible if:

1. it sets out the offices activities, or
2. they set out a matter observed/investigated and reported on that they have a legal duty to create.

*reports of law enforcement is NOT admissible under this exception

*authentication: self-authenticating if certified or under seal or by custodian of records

Question 30

records of vital statistics

hearsay exception

Answer 30

Records or data compilations of births, deaths, or marriages are admissible if the report was made to a public office pursuant to requirements of law.

Question 31

absence of entry in a public record

Answer 31

Evidence that a matter is NOT included in records or data compilations kept in accordance with the public records rules, including vital statistics, may be admitted to prove the non-occurrence of the event or the non-existence of the matter.

Question 32

family and personal history records

hearsay exception

Answer 32

Records of, or certificates authorized by, a religious organization (or by law) concerning personal or family history, such as births, deaths, marriage, baptism, etc.

Also, family records contained in family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, urns, crypts, etc.

Question 33

records, or statements in documents, that affect an interest in property

hearsay exception

Answer 33

Documents (e.g., deeds, mortgages) kept by law in government recording offices or statements in other documents (e.g., letters, contracts) that affect an interest in, typically, real property.

Question 34

statements in ancient documents

hearsay exception

Answer 34

Admissible in a document in existence prior to January 1, 1998 if found in a place where these items are typically found. Think archives, library, even a shoebox kept under a bed.

Question 35

market reports, commercial publications

hearsay reports

Answer 35

Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

Question 36

Learned treatises (expert exception)

hearsay exception

Answer 36

A statement contained in a treatise, periodical, or pamphlet is admissible if:

1. Statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
2. Publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

-Learned treatises are often offered to contradict an expert witness on cross-examination, so they can be used to impeach and as substantive evidence.

Question 37

authoritativeness requirement of learned treatises

Answer 37

Authoritativeness can be established by:

1. judicial notice;
2. expert testimony (your expert or your opponent’s expert); or
3. by stipulation between the parties.

Subject area: MASH: Medicine, Art, Science, History.

Question 38

can a learned treatises be read to the jury?

Answer 38

The treatise can be read to the jury, but, like with past recollection recorded, the document does not become an exhibit which is physically given to the jury.

Question 39

Reputation Concerning Personal and Family History

and

Reputation Concerning Boundaries and General History

hearsay exception

Answer 39

Reputation evidence among family, associates and community is admissible to:

-prove the witness’s personal or family history (e.g., adoption, relations, etc.),

-as well as reputation in the community concerning property boundaries, local customs relating to land, and general historical events across the country.

Question 40

Judgment of previous criminal conviction

hearsay exception

Answer 40

Final judgments of previous convictions for felonies are admissible to prove an essential element of the action.

-authentication: typically, by self-authentication of the public record.

Question 41

Judgments Involving Personal, Family, or General History, or a Boundary

hearsay exception

Answer 41

A judgment admitted to prove a matter of personal, family, or general history, or boundaries, if the matter was essential to the judgment and could be proved by evidence of reputation.

Question 42

hearsay exceptions: declarant unavailable

Answer 42

*the declarant’s unavailability is an element of the exception and a condition to admissibility under the exception

1. former testimony
2. statement against interest
3. dying declaration
4. statement of personal or family history
5. statements against party that caused declarant to be unavailable

Question 43

When is the declarant considered unavailable?

Answer 43

(“PRISM”)
If declarant:

1. Is exempt because of a privilege;
2. Refuses to testify despite a court order to do so;
3. Incapacitated due to either death, physical or mental illness;
4. Cannot be subpoened or compelled to attend
5. Has faulty memory of the subject matter

Question 44

What happens if the proponent caused the declarant to be unavailable?

Answer 44

If the proponent procured or wrongfully caused the declarant’s unavailability to prevent the declarant from attending or testifying, the declarant will not be considered unavailable.

Question 45

former testimony

hearsay exception

Answer 45

Former testimony is admissible if:

1. Declarant is unavailable;
2. testimony is made under oath, while testifying in a proceeding or deposition that involves the same, or different but related subject matter,
3. The party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination (i.e. the prior cross-examination is a reasonable substitute for cross-examination in the current case)

Question 46

Do sworn affidavits or statements qualify for the former testimony exception?

Answer 46

No because they are not considered hearings or proceedings

Question 47

Is grand jury testimony admissible under the former testimony exception?

Answer 47

No because no opportunity to cross-examine, but may be admissible as a prior inconsistent statement

Question 48

dying declaration

hearsay exception

Answer 48

a statement that the declarant made

1. while believing the declarant’s death to be imminent,
2. about his cause or circumstances of what he thought was the cause of their impending death

*requires that the judge determines whether the declarant subjectively believed death was imminent- death not actually need to result

declarant must be unavailable

Question 49

statements against interest

Answer 49

a statement of an unavailable witness that was against the declarant’s pecuniary, proprietary, or penal interest when made is admissible

Question 50

pedigree exception

hearsay exception

Answer 50

Statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.

Question 51

forfeiture by wrongdoing

hearsay exception

Answer 51

A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the hearsay rule).

Question 52

Confrontation Clause (Crawford)

Answer 52

in a criminal case where the declarant is unavailable, “testimonial” hearsay statements will be inadmissible unless D is given an opportunity to cross-examine the declarant.

Question 53

testimonial hearsay

Answer 53

a hearsay statement about past events that the declarant reasonably expected would be used in a subsequent prosecution.
(typically made to police or gov’t employee, or made in a “formal” setting)

examples:
-many statements made to police or during police interrogation statements made in court or court-like settings;
-affidavits; and
-depositions.

Question 54

confrontation clause exceptions

Answer 54

testimonal hearsay will be admitted even if the declarant is NOT unavailable or D did not have a chance to cross-examine:
1. dying declarations
2. child witness testifying via closed circuit
3. ongoing emergency (Statements made where the primary purpose of the statement is to aid police during an ongoing emergency)

Question 55

waiver of confrontation clause rights

Answer 55

forfeiture by wrongdoing- a criminal D forfeits their CC rights if they cause the unavailability of the declarant through forfeiture by wrongdoing with the intent to prevent that declarant from testifying at the trial or hearing

Question 56

hearsay within hearsay

Answer 56

An out-of-court statement contains additional out-of-court statements:

-both the primary statement and the included statement must have a separate basis for admissibility: meaning a hearsay exception must be found to apply to each bit of hearsay.

-If the underlying hearsay cannot be redacted, the entire statement is inadmissible.

common situations: business records medical records, charts

Question 57

impeachment and rehabilitation of hearsay declarants

Answer 57

Impeachment and rehabilitation of a hearsay declarant is accomplished in the same way that a declarant on the stand is impeached or rehabilitated.