Hearsay Flashcards
What is the 4-step (possibly 5-step) analysis for every hearsay problem?
- Is the evidence relevant under 401?
- Is the evidence hearsay under 801?
- Do any hearsay exceptions apply under 803-807?
- Should the evidence be excluded under 403?
**If the government offers hearsay in a criminal prosecution, there’s a 5th step in the analysis:
- Do confrontation problems arise under the 6th Amendment?
What is the definition of hearsay?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
What does “statement” mean?
(for hearsay)
801(a) defines the term statement as:
–a persons oral assertion,
–a persons written assertion, or
–a persons nonverbal conduct, if the person intended it as an assertion.
What does “out-of-court” mean?
(for hearsay)
A statement is considered out-of-court if it was not made in the present proceeding.
What does “offered to prove the truth of the matter asserted” mean?
If you call a hearsay witness to testify about statements by an out-of-court declarant, and if you offer this hearsay testimony in order to prove that the point made by the out-of-court declarant was correct, then you have offered the statement “for the truth of the matter asserted”
What is the best way to begin to break down a hearsay problem?
The best way to begin is by identifying:
–the declarant
–the hearsay witness, and
–each layer of hearsay
Who is the “hearsay witness”?
The most common form of hearsay evidence is testimony.
The term “hearsay witness” refers to the witness in court who is discussing what the declarant said out of court.
Occasionally the hearsay witness is the same person as the out-of-court declarant (e.g. when the defense attorney calls the defendant himself to testify about what the defendant had previously said out of court)
Who is the “declarant”?
The declarant is the person who made the statement in the first place.
Usually the declarant is not present in court - which is why we have a hearsay problem.
What are multiple layers of hearsay?
Once in awhile a fact patterns involves more than one layer of hearsay. When multiple layers of hearsay exist, the proponent will need to find a hearsay exception for each layer of hearsay, or the evidence will not be admissible.
What is a “hearsay document”?
Sometimes hearsay is presented in written form (e.g. a police report setting forth what a crime victim said out of court).
The term “hearsay document” refers to a writing that states what a declarant said out of court.
Why do we not freely admit hearsay?
Hearsay is problematic bc the opposing party cannot confront and cross-examine the declarant.
Further, the reliability of hearsay is suspect - the declarant is not under oath, his credibility cannot be tested in court and observed by the jury, and there is some risk that the accuracy of the declarants original perceptions may have been “lost in the translation” when he talked to the hearsay witness.
The prosecution offers a police report that recounts what a bystander heard the crime victim say out of court. Identify all the layers of hearsay.
Two layers of hearsay:
-the bystanders comment about the crime victims statement is the 1st layer.
-the police report’s recitation of the bystander’s statement is the 2nd layer.
What do FRE 801 and 802 provide?
801 defines what qualifies as hearsay.
802 provides that hearsay is inadmissible except as provided in the FRE.
What are the “definitional loopholes” under 801? (explain what they are and then list the 5 broadly)
There are 5 categories of loopholes in 801. If any of the 5 loopholes apply, the evidence in question is not hearsay.
- Definition of “statement” in 801(a)
- Definition of “declarant” in 801(b)
- Definition of “hearsay” purpose in 801(c)
- Exclusion under 801(d)(1) of certain prior statements by witnesses
- Exclusion under 801(d)(2) of certain admissions by party-opponents
What does 801(a) definition of “statement” provide?
801 loophole
excludes nonverbal conduct unless intended as an assertion