Hearsay Flashcards
What is hearsay?
Hearsay is a statement that a declarant makes at a time other than while testifying at the current trial or hearing (an out-of-court statement) that is offered to prove the truth of the matter asserted.
Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion set out in the Federal Rule, a federal statue, or a Supreme Court Rule.
Who must the declarant under hearsay be?
Must be a person, evidence generated by a machine or animal cannot be hearsay.
What kind of statement can be hearsay?
Oral, written, or assertive nonverbal conduct can all be hearsay.
What are examples of when a statement is offered to prove something other than the truth of the matter asserted, which means it isn’t hearsay?
Legally operative facts
-> A statement offered to prove that the statement was made, regardless of its truth, is not hearsay.
Effect on recipient (effect on the listener)
-> A statement offered to show the effect on the person who heard it is not hearsay.
State of mind
-> A statement offered as circumstantial evidence of the declarant’s mental state is not hearsay.
Identification
-> A statement that is used as circumstantial evidence linking a person with an event, place, or object is not being introduced for its truth and therefore is not hearsay
Impeach and rehabilitation
-> A statement offered solely to impeach or rehabilitate a witness is not being introduced for its truth and therefore is not hearsay.
Can a statement that includes hearsay within hearsay (multiple hearsay) be admissible? If so, how?
Hearsay within hearsay may be admissible if each party of combined statement conforms to hearsay exception.
What are two types of statements, which otherwise would qualify as hearsay, are not considered hearsay?
Declarant-witness’s prior statements
Opposing party’s statements
When are a declarant-witness’s prior statements admissible?
Declarant must testify at present trial and be able to be cross-examined in order for the prior statements to be admissible.
His statements cannot be admissible if witness is dead or otherwise unavailable to testify.
When are a declarant-witness’s prior inconsistent statements admissible?
Prior inconsistent statements made under penalty of perjury (aka under oath) at any related proceeding (related to the case) IS ADMISSIBLE to impeach decedents credibility and as substantive evidence.
Note: if the prior inconsistent statements are made at a prior proceeding that isn’t related to this case, then still admissible to impeach but not as substantive evidence.
When are a declarant-witness’s prior consistent statements admissible?
Prior consistent statements ARE ADMISSIBLE to rebut express/implied charge that declarant recently fabricated it or acted with improper motive via-a-vis the statements, BUT the prior consistent statements must be made before declarant had reason to fabricate the statements.
When are a declarant-witness’s prior statement of identification admissible?
Prior statement of identification of a person after perceiving that person (e.g. a lineup, overhearing the D talk at the police station) is admissible as non-hearsay substantive evidence EVEN if witness has no memory of identification.
Note: the declarant-witness must be alive, able to testify and be cross-examined for such statements to be admissible.
When is an opposing party’s statement admissible as non-hearsay?
Made by party to current litigation.
Admissible without personal knowledge.
Statement can be in the form of an opinion.
Need not have been against the party’s interest when it was made, BUT must be RELEVANT to the matter.
What is a judicial admission?
An opposing party’s admission made during pleading, discovery process or judicial proceedings is conclusive evidence.
When are withdrawn guilty pleas not admissible?
Not admissible in subsequent proceedings.
What is an adoptive admission?
A statement of another person that expressly/impliedly adopts as their own.
When is silence in response to a statement considered an adoptive admission?
Silence in response to a statement is considered an adoptive admission if:
-> the person understood the statement
-> the. person had the ability and opportunity to deny the statement
AND
-> a reasonable person similarly situated would have denied the statement.
What are vicarious statements?
A statement made by one person may be imputed to another based on the relationship between them.
Relationships are:
-> employee/employer
-> agent/employer
-> authorized speaker
-> co-conspirators
