Hearsay

Question 1

Hearsay definition

Answer 1

A statement,
by an out of court declarant
offered into evidence to prove the truth of the matter asserted

Question 2

Hearsay rule

Answer 2

Statement inadmissible upon appropriate objection unless exception applies

rationale: adverse party was denied the opurtunity to cross examine the declarant at the time the statement was made

Question 3

Hearsay within hearsay

Answer 3

Out of court statement that incorporates other heasay within it

Admissible only if each hearsay statement falls within exception.

Question 4

Hearsay definition: “The statement”

Answer 4

Persons:
1) oral or written assertion
2) nonverbal conduct intended as assertion]

No such thing as a non-human hearsay/statement

Question 5

Hearsay definition: “Not made at current trial or hearing”

Answer 5

Out of court statement.
or
Statement made at a different trial OR hearing can be hearsay.

Question 6

Hearsay definition: “offered to prove the truth of the matter asserted”

Answer 6

If authored for a nontruth purpose, not hearsay.

Common non-truth purposes:
1) Verbal acts/legally operative facts (such as words of contract or defamatory words)
2) Statements offered to show their EFFECT ON THE LISTNER OR READER
3) Statements offered as circumstantial evidence of declarant’s state of mind (insanity, knowledge)
—don’t confuse circumstantial evidence with statements that reflect DIRECTLY on D’s state of mind

Ask: Are we relying on the declarant’s credibility? If no, prob not hearsay.

Question 7

Statements that are nonhearsay under the federal rules (hearsay exclusion categories)

Answer 7

1) Prior statements of testifying witness (certain)
2) Statements by or attiributable to opposing party

Question 8

Prior Statements of Testifying witness (hearsay exclusion)

Answer 8

Generally, a witness’s own prior out of court statement is hearsay and inadmissible unless an exception applies

But, under fed rules, if subject to CX, not hearsay if:
1) the prior statement is of identification of a person as someone the witness percieved earlier
2) the prior statement is INCONSISTENT with teh declarent’s incourt testimony and was given UNDER OATH at a prior proceeding
3) Certain prior consistent statements
–when witness charged with lying or exaggerating due to recent motive and statement pre-dates motive
–when witness impeached on other non-character grounds

Question 9

Statements by or attributable to opposing party

Answer 9

Not hearsay.

Categories that permit special attention:
1) Judicial and extrajudicial statements
2) Adoptive statements
3) Vicarious statements

Question 10

Judicial and extrajudcial statements (statements by or attributable to opposing party)

Answer 10

Formal statements (pleadings, etc.) are conclusive. Cannot be contradicted in trial.

Informal judicial admissions (such as during testminoy or from a different case) can be explained

Question 11

Adoptive Statements (statements by or attributable to opposing party)

Answer 11

Party’s express or implied adoption of another’s statements can be used against them. Reaminig silent in face of accusation can be used against them if:
1) Party heard and understood it
2) Party was capable of denying it, AND
3) reasoanble person would have denied it

BUT silence in the face of accusations by police are almonst never considered admissions.

Question 12

Vicarious Statements(statements by or attributable to opposing party)

Answer 12

Certain statements by another person are admissible against a party b/c of the realtionship between them.

1) Authorized spokesperson
2)Agents and employees if statement:
–concerned matter within scope of employment/agency, AND
–was made during relationship
3) Partners
4) Co conspirators if statement made in furtehrance of a crime
5) privies in title and joint tenants (state courts only)

Prelim Determations: before admitting, court must make a prelim determination of the declarant’s relationship with the party against whom the statement is authored. Court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship. Must be some independent evidence.

Question 13

Hearsay Exceptions - Declarant Unavailable

Answer 13

5 Exceptions that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify.

1) Former Testimony
2) Statements Against Interest
3) Dying Decleartions
4) Statements of Personal Or Family History
5) Statments offered against party procuring Declarant’s Unavailability

Question 14

Gounds for Unavailability (Hearsay Exception DU)

Answer 14

1) Death or illness
2) Privlege (such as 5A)
3) Refusal to testify despite court order
4) INability to remember subject matter
5) Absent and attendance cannot be procured

Question 15

Former Testimony (Hearsay DU Exception(

Answer 15

1) Declarant unavailble
2) Testimony was given under oath; AND
3) Party against whom testmiony now being offered (or in civil case, the party’s predecessor in interest (privity)) had oppurtunity and simliar motive to develop the testimony at the prior proceeding

“oppurtunity and similiar motive” means taht hte party against whom the testimony is offered must have been a PARtY IN THE FORMER ACTION, and the former action must have involved the SAME SUBJECT MATTER (but not necessairly causes of action).

NOTE: Not available FROM grand jury proceedings b/c no ooppurtunity to cross examine

Question 16

Statement Against INterest (hearsay DU exception)

Answer 16

Statement was against unavailable declarant’s pecuniary (money), proprietary (property), or penal interest WHEN MADE.

Had to have personal knowledge of the facts. Must have been aware it was against hteir interests when they made it.

LIMITATION on statements against penal interst: Statements against penal interest must be corroborated.

Staements means only remarks that inculpate the declarant. Not the entire, extended declaration.

Question 17

Dying Decleration (Hearsay DU Exception)

Answer 17

1) Unavailable declarant
2) Homocide (not attempted) prosecution or any civil case
3) Declarante BELIEVED death imminent
4) Statement Concerned cause or circumstances of what the declarant believed to be their impending death

Must be based on declarants perceptions and first hand knowledge of waht happened

Question 18

Statements of Personal or Family History (Hearsay DU Exception)

Answer 18

Statements by unavailable declarant concerning birth, death, and other family matters admissible if:
1) Declarant is member of or intimately association with family, AND
2) statements are based on personal knoweldge of factors or family reputation

Question 19

Statements offered against party procuring declarant’s unavilability (Hearsay DU Exception)

Answer 19

Admissible if offered against a party who intentioanlly caused declarant to be available.
—BASED ON MOTIVATION/INTENT. Only applies if MOTIVATION for action was to stop him from testifying.

Question 20

Hearsay Exceptions - Declarants Availability is Immaterial

Answer 20

Don’t reqiure unavilability.

1) Excited Utterances
2) Present Sense Impressions
3) Present State of Mind
4) Statements Made for PUrposes of Medical Diagnosis or Treatment
5) Recrods of a Regularly Conducted Activity - Business records
6) Official Records and other Official writings
7) Recorded Recollection
8) Learned Treatises
9) Ancient Documents
10) Documents Affecting Property Interests
11) Reputation
12) Family Records
12) Market Reports

Question 21

Excited Utterances (Hearsay Immaterial Exception)

Answer 21

1) Relates to startling event
2) Was made while declarant was under stress of excitment from event in question

Can be 10 minutes later. DOesn’t need to be immediate.

Sometimes, a failed dying decleration can succeed as an excited utterance

Question 22

Present Sense Impressions (Hearsay Immaterial Exception)

Answer 22

1) Describes or explains event or condition
2) Made while or immediatly after declarant percieves event or condition

Question 23

Present State of Mind (Hearsay Immaterial Exception)

Answer 23

Includes statements of declarant’s then-existing motive, intent, plan, and emotional, sensory, and physical condiction

Does NOT inlude statements of memory or belief

DOES include statements of intent to do something in the future, INCLUDING the intent to ENGANGE IN CONDUCT with another person.

DOES include statement of physical condition.

Question 24

Statements Made for Purposes of Medical Diagnosis or Treatment (Hearsay Immaterial Exception)

Answer 24

Statements describing medical history, past or present sypmtoms, or their inception or general cause

Must be made for and reasonably pertinent to medical diagnosis or treatment.

Usually declarant will be describing their own condition, but its not required.
–ex. family member.

Usually made to medical personnel, but not required.

EXCEPTION in some courts: child abuse victims, in course of treatment, may identify abuser.

Question 25

Records of a Regularly COnducted Activity (business records) (Hearsay Immaterial exception)

Answer 25

Record of act, event, condition, opinion, or diagnosis admissible as proof of that occurence if:
1) Buisness (broad)
2) Entry made in the regular course of business, and business regularly keeps such records;
–self serving applicant reports usually don’t fly
3) Entry made near time of the event; AND
4) consists of matters within personal knowledge of entrant (or someone who had duty to trasmit info to entrant)

NOTE: often present a MULTIPLE HEARSAY problem

Court may exclude for lack of trustworthiness - burden on opponent.

Question 26

Business Recrods to prove nonoccurence of a matter

Answer 26

Admissible if business regularly recorded such matters

Question 26

Requiresd FOundation of BUsiness Records

Answer 26

Custodian of records or other qualified witness must provide either:
1) incourt testimony or
2) written certification

to certify authenticity

Question 27

Public Records and Reports (Hearsay I Exception)

Answer 27

Admissible if records setting forth:
1) Activities of agency
2) matters observed pursuant to legal duty, but not including police observations in criminal cases
3) Recording of factual findings resulting from legally authorized invesetigation (but not against D in crim case)

Writing must have been made by and within the scope of the duty of the public employee. Must have been made at or near the time of event.

May be excluded for lack of trustworthiness (burden on opponent)

Question 28

Other Official Records (Hearsay I Exception)

Answer 28

1) Records of vital statistics
2) Absence of public record
3) Judgments

Question 29

Recorded Recollction (Hearsay I excpetion)

Answer 29

If a testifying witnesses memory can’t be revivied, a party may introduce a memo or other record the witness made or adopted at or near the time of the event.

Can only be READ into evidence.

Question 30

Learned Treatises (Hearsay Immaterial Exception)

Answer 30

Admissible as substantive proof if:
1) treatise is estalbished as reliable authority and
2) excerpt is relied upon by an expert during DEX or brought to an experts attention on CEX.

READ into evidence.

Only admissible in context of expert testimony.

Question 31

Residual “Catch-ALL” Exception of Federal Rules

Answer 31

1) Trustworthy (ToC)
2) Strictly Necessary (best evidence)
3) Reasonable notice to adversary

Question 32

Hearsay and the Confrontation Clause

Answer 32

Hearsay statement inadmissible under Constitution IF:
1) Offered against criminal defendant (in crim case)
2) Declarant unavailable
3) Accused had no oppurtunity to CEX declarant about statement
4) Statement is testimonial

Question 33

“Statement is Testimonial” (Confrontatio Clause

Answer 33

Includes sworn statements AND statements to law enforcment officers and certain documents

Law enforcment: depends on primary purpose
–to aid in ongoign emergency = non testimonial
–to provide information for later prosecution = testimonial

Certain documents: Affadavits or written reports of forensic anaylsis
–testimonial. Can’t be admitted unless D had oppurtunity to CEX the author of report.

Question 34

Due Process RIghts

Answer 34

Cannot be applied where such applicaiton would deprive the accused of their right to a fair trial or deny their right to compulsory process.