Hearsay

Question 1

Hearsay general rule

Answer 1

Hearsay is a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted

If hearsay and no exception, must be excluded

Question 2

Hearsay within hearsay

Answer 2

An out of court statement that incorporates other hearsay within it is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule

Question 3

Statement

Answer 3

A statement is a person’s
- oral or written assertion, or
- nonverbal conduct intended as an assertion

Must be an out of court statement by a person
- so a radar gun and drug sniffing dog are not hearsay

Question 4

Offered to prove truth of the matter asserted

Answer 4

The statement needs to be offered to prove the truth of it
- if not, not hearsay

Common non-truth purposes
- verbal acts or legally operative facts (contract or defamatory words)
- statements offered to show their effect on the listener or reader
- statements offered as circumstantial evidence of declarant’s state of mind (to prove insanity or knowledge)

Question 5

Hearsay exclusions / exemptions generally

Answer 5

Certain statements that meet the basic definition of hearsay but have been specifically designated as not hearsay under the federal rules
- prior statements of testifying witnesses
- statements by or attributable to opposing party

Question 6

Statements by or attributable to opposing party generally

Answer 6

An opposing party’s statement (either made by or attributable to a party and offered against that party) is not hearsay

Statement need not have been against the declarant’s interest when made and may even be in the form of an opinion

Personal knowledge is not required

Different types of opposing party statements

Question 7

Prior statements of testifying witnesses

Answer 7

A prior statement by a testifying witness who is subject to cross examination is not hearsay if:

Prior statement is one of identification of a person as one the witness perceived earlier
- even if witness cannot remember making the identification

Prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding, or

Prior statement is consistent with the declarant’s in-court testimony and is
- offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or
- offered to rehabilitate a witness whose credibility has been impeached on some other ground, other than a general attack on the witness’s character for truthfulness, such as an inconsistency or charge of faulty memory

Question 8

Judicial and extrajudicial statements - opposing party statement

Answer 8

A party’s formal judicial statements are conclusive and cannot be contradicted during trial

A party’s informal judicial statements made during testimony and extrajudicial statements are not conclusive and can be explained

A party’s formal judicial statement in one case can be admitted against them as an extrajudicial statement in another case

Question 9

Adoptive statements - opposing party statement

Answer 9

Where a party expressly or impliedly adopts or acquiesces in the statement of another, the party’s acquiescence may be admissible against them

Silence

Question 10

Silence - opposing party statement

Answer 10

If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of that statement if the following requirements are met
- party heard and understood the statement
- the party was physically and mentally capable of denying the statement, and
- a reasonable person would have denied the accusation

But silence in the face of accusations by police in a criminal case is almost never considered an admission

Question 11

Vicarious statements - opposing party statement

Answer 11

Certain statements by another person are admissible against a party because of the relationship between them
- co-parties
- authorized spokesperson
- agents and employees
- partners
- co-conspirators
- privies in title and joint tenants

Question 12

Co-parties and vicarious statements - opposing party statement

Answer 12

Statements of a party are not receivable against their co-parties merely because they happen to be joined as parties

Question 13

Authorized spokesperson and vicarious statements - opposing party statement

Answer 13

The statement of a person authorized by a party to speak on its behalf (such as a statement by company’s press agent) can be admitted against the party

Question 14

Agents and employees and vicarious statements - opposing party statement

Answer 14

A statement by an agent or employee is admissible against the principal if the statement
- concerned any matter within the scope of their agency or employment, and
- was made during the existence of the agency or employment relationship

Question 15

Partners and vicarious statements - opposing party statement

Answer 15

After a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners

Question 16

Co-conspirators and vicarious statements - opposing party statement

Answer 16

Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators

Court must determined the existence of a conspiracy, and the party’s participation init, by a preponderance of the evidence

Question 17

Privies in title and joint tenants and vicarious statements - opposing party statement

Answer 17

State courts only

In most state courts, statements of each joint owner are admissible against the other, and statements of a former owner of real property made at the time they held title are admissible against those claiming under them

Do not qualify as opposing party statements under federal rules but may be admissible under one of the hearsay exceptions

Question 18

Preliminary determinations and vicarious statements - opposing party statement

Answer 18

Before admitting an out-of-court statement as a vicarious statement of an opposing party, court must make a preliminary determination of
- whether declarant was authorized to speak for the party
- whether the declarant was the party’s agent/employee, or
- whether the declarant and party were co-conspirators

In making such determination, court must consider the contents of the statement
- but statement aline is not sufficient to establish the required relationship - must be some independent evidence

Question 19

Hearsay exceptions - declarant unavailable generally

Answer 19

5 exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify
- former testimony
- statements against interest
- dying declarations
- statements of personal or family history
- statements offered against party procuring declarant’s unavailability

Question 20

When the declarant is unavailable

Answer 20

A declarant is unavailable if they
- are unable to testify due to death or physical or mental illness
- are exempt from testifying because of privilege
- refuse to testify concerning the statement despite a court order
- testify that they do not remember the subject matter, or
- are absent (beyond reach of the court’s subpoena) and proponent is unable to procure their attendance or testimony by process or other reasonable means

A declarant who is able to give deposition testimony in lieu of attending trial is considered to be an available witness, except with respect to
- the former testimony exception, and
- the forfeiture by wrongdoing exception

Question 21

Unavailable witness - procured declarant’s unavailability

Answer 21

A declarant is not considered unavailable for purposes of the hearsay rule if the proponent of the declarant’s statement procured or wrongfully caused the declarant’s unavailability in order to prevent them from attending or testifying

Question 22

Former testimony (unavailable declarant)

Answer 22

The testimony of a now-unavailable witness is admissible if
- the testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case, and
- the party against whom the testimony is now being offered - or in a civil case, the party’s predecessor in interest - had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination

Predecessor in interest refers to a person in a privity relationship with the party

Question 23

Opportunity and similar motive req - former testimony

Answer 23

Practical level, the opportunity and similar motive req means that the 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 the causes of action do not need to be identical

Grand jury testimony of an unavailable declarant is not admissible against a defendant under four testimony exception
- but would be if now-testifying witness if inconsistent statement given under oath

Question 24

Statements against interest

Answer 24

Statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary (money), proprietary (property), or penal (criminal) interest when made

Such that a reasonable person in the declarant’s position would have made it only if they believed it to be true

Declarant must also have had personal knowledge of the facts and must have been aware that the statement was against their interest when they made it

Question 25

Statements by an opposing party vs. statements against interest (4 key differences)

Answer 25

By opposing party - does not need to be against interest when made - declarant does not need personal knowledge of facts - declarant does not need to be unavailable - must be a party Against interest - must have been against interest when made - declarant must have personal knowledge of facts - must be unavailable - does not need to be a party

Question 26

Statements against penal interest in criminal cases

Answer 26

In criminal cases, statements against penal interest (subject declarant to criminal liability) must be corroborated

Question 27

Statement - statement against interest

Answer 27

If a person makes a declaration containing statements that are against their interest and statements that are not, the exception covers only those remarks that inculpate the declarant, not the entire extended declaration I sold the drugs and x runs the drug ring - only I sold drugs is admissible

Question 28

Dying declarations

Answer 28

In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if - the declarant believed their death was imminent (they do not actually need to die), and - the statement concerned the cause or circumstances of what the declarant believed to be their impending death Statement must be based on the declarant's perceptions and firsthand knowledge of what happened - unsupported opinion or speculation will not qualify Not available in attempted homicide either

Question 29

Statements of personal or family history

Answer 29

Isn't frequently tested Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc, are admissible provided that - the declarant is a member of the family in question or intimately associated with it, and - the statements are based on the declarant's personal knowledge of family reputation

Question 30

Statements offered against party procuring declarant's unavailability

Answer 30

The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability Must have been the party's motivation to prevent the declarant from testifying - not within this exception if killed a declarant for a different reason

Question 31

Excited utterance

Answer 31

Out of court statement relating to a startling event, made while under the stress of the excitement from the event - before declarant had time to reflect upon it Look at - nature of event - passage of time - phrases in wording in question (!)

Question 32

Present sense impressions

Answer 32

Statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition

Question 33

Present state of mind

Answer 33

Statement of the declarant's then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible Except as to certain facts concerning the declarant's will, a statement of memory or belief is not admissible to prove the truth of the fact remembered or believed

Question 34

Present state of mind - statements of intent

Answer 34

State of mind includes statements about the declarant's intent to do something in the future Including the intent to engage in conduct with another person

Question 35

Present state of mind - statement of physical condition

Answer 35

Exception covers a declarant's statement to anyone about their current physical condition

Question 36

Medical diagnosis or treatment

Answer 36

Statement that describes a person's medial history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for, and reasonably pertinent to, medical diagnosis or treatment Usually will be describing their own condition, but not required - medical assistance for a family member Not an absolute requirement that the statements are made to medical personnel Usually only limited to statements for diagnosis or treatment, but will admit a statement in which a child abuse victim identifies their abuser in the course of treatment Still applies even if doctor retained for sole purpose of testifying as expert

Question 37

Business records

Answer 37

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the following elements are met Business - includes every business, organization, occupation, etc Entry made in regular course of business - record made in regular course of business, and - business regularly keeps such records - duty to make the entry (self-serving accident reports prepared primarily for litigation usually inadmissible) Entry made near time of event Personal knowledge - consist of matters within the personal knowledge of the entrant, or - within the knowledge of someone with a duty to transmit such matters to the entrant

Question 38

Business records and multiple hearsay

Answer 38

Often present multiple hearsay problems Watch out for police reports or other incident reports that contain statements from bystanders - individuals who generally are not under a business duty to convey the information - report itself may qualify - but bystanders' statements within it do not and would need to fall within some independent hearsay exception

Question 39

Required foundation for business records

Answer 39

The authenticity of the record must be established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgable about the business's record keeping - does not need to be the author of the record in question Can be accomplished by the records custodian - testifying that the record meets the elements of the business records exception, or - certifying in writing that the record meets the elements of the business records exception

Question 40

Business records - nonoccurence

Answer 40

A business record that meets the above requirements may also be used to prove the nonoccurrence or nonexistence of a matter if it was the regular practice of the business to record all such matters

Question 41

Business records and lack of trustworthiness

Answer 41

Even if a business record meets all requirements, still may be excluded by the court if the opponent makes a showing that the circumstances of the record indicate a lack of trustworthiness

Question 42

Public records and reports

Answer 42

Following records of a public office or agency are admissible - records setting forth the activities of the office or agency (like payroll records) - recordings of matters observed pursuant to a duty imposed by law, but not including police observations in criminal cases, and - in civil actions and against the government in criminal cases, but not against the defendant in a criminal case, records of factual findings resulting from an investigation authorized by law Must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event May be excluded if indicate a lack of trustworthiness

Question 43

Police reports

Answer 43

As a general rule, police reports can be admitted under the public records exception - even the officer's opinions and factual (not legal) conclusions can be admitted But public records and reports generally are not admissible against the defendant in a criminal case - investigative reports by police, FBI, and other agencies are inadmissible Most courts have held that they cannot be admitted against a criminal defendant under business records exception

Question 44

Records of vital statistics - public records

Answer 44

Records of vital statistics are admissible if reported to a public office in accordance with a legal duty

Question 45

Statement of absence of public record

Answer 45

Evidence in the form of testimony or a certification from the custodian of public records (or other qualified person) that they have diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur Criminal defendant has a right to confrontation and may demand the presence of the person who prepared the certification - so in a criminal case, this type of evidence is admissible in the form of a certification only if the prosecution notices the defense at least 14 days before trial and defense does not object in writing within 7 days of receiving the notice

Question 46

Judgments - public record

Answer 46

A certified copy of a judgment is always admissible proof that the judgment has been entered Problem is to what extent the facts adjudicated in the former proceeding can be introduced to prove facts in the present case Does not apply to records of prior acquittals A civil judgment is inadmissible in a subsequent criminal proceeding because of the different standard of proof

Question 47

Recorded recollection

Answer 47

If a testifying witness's memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event Record can only be read into evidence - not admitted unless offered by adverse party

Question 48

Learned treatises

Answer 48

Statements contained in learned treatise are admissible as substantive proof if - the treatise is established as reliable authority, and - the excerpt is relief upon by an expert during direct exam or brought to an expert's attention on cross If admitted, read into evidence but not received as an exhibit

Question 49

Ancient documents

Answer 49

Statements in any authenticated document prepared before Jan 1, 1998 are admissible

Question 50

Documents affecting property interests

Answer 50

A statement in a document affecting an interest in property is admissible if the statement is relevant to the document's purpose Will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document

Question 51

Reputation

Answer 51

Reputation evidence is hearsay because it summarizes various out of court statements by other people Routinely admitted because several hearsay exceptions that admit reputation evidence to prove - character - personal or family history - land boundaries, and - a community's general history

Question 52

Catch-all exception

Answer 52

For a hearsay statement that is not covered by a specific exception to be admitted: Must possess sufficient guarantees of trustworthiness, considers - totality of circumstances in which the statement was made, and - any evidence that corroborates the statement Statement must be strictly necessary - more probative as to the fact for which it is offered than any other evidence that can be reasonably produced) Proponent must give reasonable notice to the adversary as to their intent to offer the statement, including - substance of the statement, and name of the declarant - generally must be given in writing in advance of trial or hearing, but can be given in any form during trial or hearing if good cause of lack of earlier notice

Question 53

Hearsay and the confrontation clause

Answer 53

A hearsay statement will not be admitted, even if it falls within a hearsay exception, where - statement is being offered against the accused in a criminal case - declarant is unavailable - statement was testimonial in nature, and - accused had no opportunity to cross-examine the declarant's testimonial statement prior to trial

Question 54

Forfeiture and confrontation clause

Answer 54

Forfeits their right of confrontation if they committed a wrongful act that was intended to keep the witness from testifying

Question 55

Testimonial statement

Answer 55

Includes sworn testimony And also includes statements to law enforcement and certain documents - whether a statement made in response to police interrogation is testimonial depends on its primary purpose - ongoing emergency - information for later prosecution

Question 56

Testimonial statement - ongoing emergency

Answer 56

If the primary purpose of police interrogation is to enable the police to help in an ongoing emergency, statements made in the course of interrogation are non testimonial Determining whether an ongoing emergency existed, relevant factors - nature of the dispute - whether the perpetrator is still at large - scope of the threat to the victim and to the public, and - type of weapon involved

Question 57

Information for later prosecution - testimonial statement

Answer 57

When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial Been held that statements by a young child abuse victim to a school teacher about the abuse are not testimonial

Question 58

Testimonial statements - affidavits or written reports of forensic analysis

Answer 58

Affidavits, certificates, or other written reports that summarize the findings of forensic analysis and have the effect of accusing a targeted individual of criminal conduct (like fingerprint test results) are testimonial and cannot be admitted unless the defendant previously had an opportunity to cross-examine the author of the report No confrontation violation if a forensic expert, while testifying as to their independent analysis of data, makes only a general reference to a non testifying analyst's report to demonstrate a partial basis for their opinion

Question 59

Due process rights

Answer 59

Hearsay rules and other exclusionary rules of evidence cannot be applied where such application would deprive the accused of their right to a fair trial or deny their right to compulsory process