Hearsay Flashcards
Rules of Hearsay, Non-hearsay, & Exceptions
What is Hearsay?
Rule 801(c)
Hearsay is an out of court statement, by a Declarant, offered into evidence, to prove the truth of the matter asserted in a statement.
When an out of court statement is offered for any other purpose, it is not hearsay.
Always be sure to start with this in the rule framework in an essay answer analysis involving hearsay, and then build the exceptions/other rules from there.
Offers to Pay Medical Expenses
Offers to pay medical expenses in itself ARE NOT ADMISSIBLE, because such offers are excluded from evidence for public policy reasons.
However, statements made in connection with offers to pay medical expenses do not fall within the public policy exclusion and ARE ADMISSIBLE!
Prior Recollection Recorded
- Witness’s memory is attempted to be refreshed and failed.
- Still cannot remember, the item used to refresh can be READ into the record by the witness IF the proper foundation has been laid.
- Must be a writing made by the witness at a time when the facts were known to him
- Opposing counsel may then offer the “thing” into evidence.
Adoptive Statement: Silence
For silence to constitute an adoption of the other person’s statement, the circumstances must establish that the party would naturally have responded to it were it untrue.
D’s silence cannot constitute an adoptive statement by an opposing party if D REASONABLY did not respond to the neighbor’s statement.
Statement By:
Out of Court Declarant = In Court Witness
Problem
D is attempting to testify as to a statement made by her out of court, and this statement is being offered to prove the truth of the matter asserted. Thus, the statement is hearsay. Because it is not within any exception to the hearsay rule, it must be excluded.
D is free to make that assertion as part of her in-court testimony, but cannot use her out-of-court statement for that purpose.
I.E.: Pollito testifies in court to the statement he made outside of court that he, “got drunk.” Pollito should just testify instead in court that he got drunk, not that he said he got drunk.
Prior Inconsistent Statement
Prior statement is inconsistent with his in-court statement and was made at a deposition; hence, it is admissible as substantive evidence as well as for impeachment.
