Hearsay Flashcards
Hearsay general rule
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
Hearsay within hearsay
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
Statement
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
Offered to prove truth of the matter asserted
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)
Hearsay exclusions / exemptions generally
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
Statements by or attributable to opposing party generally
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
Prior statements of testifying witnesses
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
Judicial and extrajudicial statements - opposing party statement
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
Adoptive statements - opposing party statement
Where a party expressly or impliedly adopts or acquiesces in the statement of another, the party’s acquiescence may be admissible against them
Silence
Silence - opposing party statement
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
Vicarious statements - opposing party statement
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
Co-parties and vicarious statements - opposing party statement
Statements of a party are not receivable against their co-parties merely because they happen to be joined as parties
Authorized spokesperson and vicarious statements - opposing party statement
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
Agents and employees and vicarious statements - opposing party statement
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
Partners and vicarious statements - opposing party statement
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
Co-conspirators and vicarious statements - opposing party statement
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
Privies in title and joint tenants and vicarious statements - opposing party statement
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
Preliminary determinations and vicarious statements - opposing party statement
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
Hearsay exceptions - declarant unavailable generally
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
When the declarant is unavailable
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
Unavailable witness - procured declarant’s unavailability
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
Former testimony (unavailable declarant)
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
Opportunity and similar motive req - former testimony
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