Hearsay

Question 1

Definitional hearsay

Answer 1

(1) statement
(2) made out of court
(3) offered for its truth

Question 2

Definitional hearsay

What is a statement?

Answer 2

A statement is a factual assertion. This assertion can be oral, written, or conduct.

Question 3

Definitional hearsay

When does conduct qualify as an assertion?

Answer 3

Conduct intended to be a substitute for words is a “statement” for hearsay purposes.
Key question to ask is, “was the conduct intended to be an assertion?”
Advisory committee note: “Nothing is an assertion unless intended to be one.”

Helpful questions to ask:
- Was there an audience? If so, more likely assertive. (Chairman took kids to blast site)
- Was communication intended?

Examples of non-assertive conduct:
- Going to bed, driving to a restaurant, etc.
- While these have meaning (tired, hungry), they are not intended to be assertions.

Question 4

Definitional hearsay

What kinds of things are NOT statements?

Answer 4

Only people can make statements. Animals and mechanical devices cannot make statements and thus are outside the definition of hearsay.
Ex: Radar gun read 100mph; dog pointed to substance; etc.

Questions are usually not considered factual assertions, but if the question has a fact built into it, it may be. (“Why did you stab me?”)
Commands / orders are NOT assertions and thus not hearsay, but some commands may contain implied assertions (“don’t run this stop sign” as an implied assertion there is a stop sign coming up.

Question 5

Definitional hearsay

Made out of court

Answer 5

This simply means anywhere outside the four walls of the courtroom (not under oath and a part of the current preceding).

Question 6

Definitional hearsay: Offered for its truth

Key question to ask

Answer 6

“Do we are whether this statement is true? Or is it important/significant regardless of whether it is true?”

If we don’t care whether it is true or false, it is not hearsay!

Question 7

Definitional hearsay: offered for its truth

Common reasons to offer a statement besides its truth (and explanations of them)

Answer 7

1. Impeachment
   - Statements offered to prove an inconsistency in the witness’s testimony, not to prove the truth of either story.
2. Verbal Act / Legally Operative Facts / Independent Legal Significance
   - When the statement itself effects the legal rights of the parties or bears on the conduct affecting their rights. The utterance of the words constitutes legal effect.
   - “I offer to sell you 20 widgets for $50.”
   - This shows a contractual offer was made. We don’t care whether it is true.
   - Other examples
   - Donative intent w/ gifts
   - Solicitation of bribe/prostitution
   - Statement that makes up slander
   - Marriage vows.
3. Effect on Listener/Reader
   - Statement to prove its effect on the listener rather than for its truth
   - “But for this statement, that person would not have acted that way.”
   - Ex: “It’s raining” can be offered to show why party brought an umbrella.
4. State of Mind
   - State of mind of the DECLARANT. Not that it was true, but to show the declarant believed it to be true. Think: insanity, scared, etc.
5. Memory or Belief
   - Show condition of declarant’s mind as to knowledge of a particular fact.
   - Ex: Pros uses child’s description of molester’s bedroom, not to show the memory is the correct description of the room, but to prove she’d been there…
6. Notice
   - Show person was on notice of something.
   - Ex: mechanic says “your tires are dangerously thin.”
7. Knowledge
   - Show person had knowledge of fact rather than the fact is true.

Question 8

“two bills on frankie’s favorite in the eighth”

Answer 8

Can be offered to prove the premises were a gambling den — US v. Zenni

Question 9

Hearsay exemptions under 801(d)

List

Answer 9

Opposing Party’s Statements
1. Party’s Own Statement (used by opposing party) – 801(d)(2)(A)
2. Adopted Statements (used by opposing party) – 801(d)(2)(B)
3. Spokesperson’s Statements (used by the opposing party) – 801(d)(2)(C)
4. Agent or Employee’s Statements (used by opposing party) – 801(d)(2)(D)
5. Co-conspirator’s Statements (used by opposing party) – 801(d)(2)(E)

Prior Statement’s of Declarant-Witness
6. Prior Inconsistent Statements – 801(d)(1)(A)
7. Prior Consistent Statements – 801(d)(1)(B)
8. Prior Identification - 801(d)(1)(C)

Question 10

Hearsay exemptions: Party’s own statement — FRE 801(d)(2)(A)

Answer 10

used by the opposing party

An opposing party’s statement can always be used against her.
Works Both ways – D offering P statement against P; P offering D statement against D.
Basically like the Miranda warnings: anything you say can and will be used against you

BUT a party cannot use own self-serving statements.

Question 11

Hearsay exemptions — Adopted statements — FRE 801(d)(2)(B)

Answer 11

Used by the opposing party

We will treat adopted statements as the party’s own statement against interest.
Did the party manifest they believed the statement to be true or adopt the statement?
Four preconditions:
1. Party heard and understood the statement
2. Party was at liberty to respond
3. Circumstances naturally called for a response
4. Party failed to respond (or, in some cases, respond without rebutting or denying)

“I don’t have any more drugs for sale, but my buddy Redmon does.” Redmon would normally rebut or deny if this was not true…

Question 12

Hearsay exemptions — Adopted Statements

Can a party adopt a written statement as true?

Answer 12

Yes, by ratifying it — Ex: company memo with attached article “this shows we have been selling a dangerous product”

Question 13

Hearsay exemptions — Adopted statements

How do miranda warnings change anything?

Answer 13

Question 14

Hearsay exemptions — Adopted statements

How do miranda warnings change anything?

Answer 14

Question 15

Hearsay exemptions: Spokesperson’s statements — 801(d)(2)(c)

Answer 15

if you are authorized to speak on behalf of a party, that statment can be used by the opposing party against the party you’re speaking on behalf of.

Question 16

Hearsay exemptions: Agent or employee’s statements — FRE 801(d)(2)(D)

Answer 16

When an employee makes a statement adverse to her employer and it concerns a matter within the scope of employment.
Ask: was the employee’s statement
(1) Concerning a matter within the scope of his agency or employment?
Water cooler chatter is likely excluded.
(2) Made during the existence of the agency or employment relationship?
If both of these are true, then an employee’s statements are admissible against employer.

Notes:
- ONE WAY STREET - Can’t use principal’s statements against employee
- Lack of personal knowledge is NOT an obstacle – Mahlandt (wolf case) (he said it, but he was not 100% sure of it, but it was still admissible).

Question 17

Hearsay exemptions: co-conspirator’s statements — FRE 801(d)(2)(E)

Answer 17

Ask: Was the statement
(1) Made by a co-conspirator
(2) Made during, and in the furtherance of the conspiracy.
Once the arrest is made, there is no more conspiracy
Are the statements furthering the goal of the conspiracy?
If speaker is trying to thwart its success, then not in furtherance,

who/how is it determined if a conspiracy exist?
This is a preliminary question to admissibility that the court decides under 104(a) (preponderance)
Higher than Huddleston.

Question 18

Hearsay exemptions: prior inconsistent statements offered for their truth — FRE 801(d)(1)(A)

Answer 18

(1) It is inconsistent with declarant-witness’s prior testimony; and
(2) was given under the penalty of perjury/under oath
(trial, hearing, depo., etc.)

If grand jury testimony = that meets this standard, BUT JUMP TO CONFRONTATION CLAUSE.
Affidavit does NOT meet standard.
If it meets this ^ standard you may use these statements to impeach AND prove a fact stated.

Question 19

Prior inconsistent statements used to impeach (NOT for truth) — FRE 613

Answer 19

Can be used to impeach if:
Made out of court
Before the witness testifies and it
Conflicts with something witness says in testimony

Offered to show its contrast with the in-court statement to show W may have reliability issues. NOT for its truth.

Question 20

Difference between 801(d)(1) and 613

prior inconsistent statements

Answer 20

• Rule 613 applies to all prior inconsistent statements, including those that were not made under oath
• Under 613, prior statements are only used to impeach (to show witness is not credible), NOT for their truth (so not hearsay at all)
• Rule 801(d)(1)(A) applies only to statements given under penalty of perjury (i.e. depos and hearings)
• Under 801(d)(1)(A), prior statements can be used for their truth (i.e. to prove the fact being asserted) AND to impeach

Question 21

Hearsay exemptions: prior consistent statements — FRE 801(d)(1)(B)

Answer 21

Only allowed when the declarant’s MOTIVE is challenged.
Can be used for their truth if consistent with declarant-witness’s prior testimony and either
(1) is offered to REBUT a charge of recent fabrication or improper motive; OR
(2) to rehabilitate the declarant’s credibility as a witness when attacked on other grounds.
- This is trying to prove that the prior consistent statement occurred BEFORE the motive to lie existed.

Make a timeline
Here is where the motive to lie came in
Was the prior consistent statement before or after?

Before = comes in
- See Tome (Child abuse case)
- A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive

After = doesn’t come in

Question 22

Hearsay exemptions: prior Identification

Answer 22

A prior statement identifying a person the D-W previously perceived is not hearsay.
Declarant MUST be available for cross.
Still works even if witness currently lacks memory and cannot testify to basis of prior identification.
As long as witness is present/available, officer can testify to D-W’s statements made during identification as well.
Rationale
Our memory fades and people’s appearances change.
Your identification right after a crime will be much more reliable than months/years later at trial.

Question 23

Hearsay Exceptions: 803 REGARDLESS of whether declarant is available as witness

List

Answer 23

Present Sense Impression – 803(1)
Excited Utterance – 803(2)
Then-Existing Mental, Emotional, or Physical Condition – 803(3)
Statement Made for Medical Diagnosis or Treatment – 803(4)
Recorded Recollection – 803(5)
Records of Regularly Conducted Activity (Business Records) – 803(6)
Public Record – 803(8)

Question 24

Hearsay exceptions: Present sense impression — 803(1)

Answer 24

A statement describing or explaining an event or condition made WHILE or IMMEDIATELY AFTER the declarant perceived it.
- Timing is super important here. It cannot be delayed, or the rationale is lost. WITHIN SECONDS.

Rationale: The statement is reliable because the declarant hasn’t had time to come up with a lie. While you’re watching something (or immediately after) you don’t have time to formulate a lie.

Most common example: 911 calls.
Mental state: DOESN’T MATTER. We don’t care whether declarant is excited or not.

Question 25

hearsay exceptions: Excited utterance — FRE 803(2)

Answer 25

A statement relating to a startling event or condition made while the declarant was under the stress of excitement.
- Must be soon after event (can be a little later than present sense impression), but it’s not really about time. It’s about the declarant’s mental state. And the declarant is more likely to still be in an excited mental state shortly after witneessing the event or condition.

Who decides whether exited mental state exists?
Court makes this determination under 104(a) preponderance.

Factors to help determine if declarant had an excited mental state
- How exciting was this event or condition? Murder? Vandalism?
- Look to demeanor/tone to determine if still under stress of excitement

Rationale: Excitement suspends one’s capability to fabricate. If you’re in a startled, excited state, you don’t have the mental capacity to think of a lie.

Question 26

Excited Utterance & Present Sense Impression

Answer 26

Often overlap.
Present state impression has a much stricter time requirement (and doesn’t care about mental state).
Also look to lack of personal knowledge here. Is declarant actually witnessing or just drawing conclusions (hearsay within hearsay)?

Question 27

hearsay exceptions: then-existing mental, emotional, or physical condition — FRE 803(3)

Answer 27

A statement of the declarant’s
1 Then-existing state of mind (motive, intent, or plan), or
2 Emotional, sensory, or physical condition (feeling, pain, health), BUT
3 Not including statements of memory or belief to prove that fact.
- Feelings about PREVIOUS events may be inadmissible as memories
- “I Think” may be statement of belief!

Only works for the declarant – declarant’s statement of intent to do something in the future can be used to prove he did what he said he was going to do. BUT can’t be used to prove (or even implicate) the future conduct of another person.

Rationale: no issue with memory

Question 28

hearsay exceptions: Statement made for medical diagnosis or treatment — FRE 803(4)

Answer 28

A statement that
1. Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
Two-Part Test
(1) Is the declarant’s motive consistent with the purpose of the rule? (for receiving treatment)
(2) Is it reasonably for the physician to rely on the information in diagnosis or treatment?

2. Describes medical history, part or present symptoms, or their inception/general cause.

Rationale (from Iron Shell)
- It relies upon the patient’s strong motive to tell the truth because diagnosis or treatment will depend in part on what the witness says
- A fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription.
BUT as Redmon points out, I often lie to the doctor (been working out regularly)

Fault/Identity
- Statements assigning fault or identity are NOT admitted under this rule.
- “I was hit by the car” = comes in; “the other guy ran the red light” = does not come in.
- Exception: child abuse where identity is critical in treating (removing abuser from house, etc.) BUT
- A domestic abuse victim’s statements to medical personnel identifying the victim’s abuser do not categorically qualify as statements made for purposes of medical diagnosis and treatment. State v. Smith.

Declarant / Target NOT Specific
- Declarant doesn’t have to be patient (can be family/bystanders)
- Statement does not have to be made to a physician

Question 29

Hearsay exceptions: Recorded Recollection — FRE 803(5)

Answer 29

A record that
(1) is on a matter the witness once knew but now cannot recall well enough to testify fully and accurately;
(2) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(3) accurately reflects the witness’s knowledge.
If admitted, record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (This means it can come in either way. But read only if offered by party it’s supposed to benefit. Exhibit if offered by adverse)

Rationale = Relaibility. Records made by an observer while facts were fresh are highly reliable.

Question 30

Refreshing memory with 803(5) v. 612

Answer 30

612 is unrelated to hearsay (impeachment) and for that reason the refreshing doc is not entered into evidence itself.

Ask: “is the record being used to prove something?”

Question 31

Writing Used to Refresh Memory – FRE 612

Answer 31

If witness cannot remember something, counsel may refresh her memory under this rule.

Witness is shown the document, then the document is taken away once memory is refreshed and counsel repeats the question.
- Doc/recording NOT read to jury (so no hearsay objection about the doc)
- But adverse party can offer into evidence any portion that relates to testimony.
(If the adverse party wants to refresh witness’ memory under 612, they can submit that portion into evidence.
NOT related to hearsay)

Question 32

Hearsay exceptions: business records — FRE 803(6)

Answer 32

A record may be admitted if
(1) the record was made by a person with knowledge of the event
- (Or from info transmitted by a person with knowledge)
(2) the record was made at or near the time of the event
(3) the record was kept in the ordinary course of business
- Doesn’t need to be “for profit”
(4) and it was the regular practice of the business to make such records.
- Made as part of the “systematic conduct of business” (Palmer v. Hoffman)
- NOT made/kept for the possibility of litigation (Palmer)
- Ex: medical records, employment records, school records, billings, etc.

*These conditions are shown by testimony of records custodian or by certification under FRE 902(11) or (12), or a statute permitting certificaiton

Rationale: reliability – businesses rely on these records for their truth.

Police reports are technically business records, but cannot be used against the defendant in a criminal case!

LOOK OUT FOR hearsay within hearsay. If the record contains assertions from third parties (non employees of business) that are relied on for their truth. (Ex: medical records with patient statements; return receipt with customer complaint; etc)

Question 33

Hearsay exceptions: Public record — FRE 803(8)

Answer 33

A record or statement of a public office is a hearsay exception if:
(A) it sets out
- (i) the office’s activities; or
- (ii) a manner observed while under a legal duty to report (but not including in a criminal case a matter observed by law enforcement); or
- (iii) in civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
- Factual findings may include conclusions or opinions as long as they are based on the factual findings from the investigation (Beech Aircraft)
- (B) the opponent does not show that the source of information or circumstance indicate a lack of trustworthiness

TALK BUSINESS RECORDS TOO
This still doesn’t allow police reports to be offered against D in criminal case

Question 34

Hearsay exceptions: Expert relies on hearsay — FRE 703

Answer 34

Quasi exception.

Expert’s can rely on inadmissible hearsay. That hearsay relied on then can be admitted IF it satisfies a reverse 403 (probative substantially outweighs prejudice)

When Experts Rely on Inadmissible Facts/Data: ASK:
Is this the sort of data experts in this field “reasonably rely upon?”
Should hearsay/inadmissible data be disclosed to jury?
If otherwise inadmissible, jury only hears if substantially more probative than prejudicial (reverse 403 minus substantial standard)

Question 35

When is a declarant deemed unavailable?

Answer 35

804(a) gives us five situations where declarant’s are deemed unavailable:
1. Exempt from testifying due to privilege
- Self-incrimination, spousal, attorney-client, etc.
2. Refusal to testify
- Can be exercising a right, stubbornness (even in contempt of court), etc.
3. Lack of memory about the subject
- Whether true or claimed
4. Death or physically/mentally unavailable
- Severe enough to prevent them from testifying (common cold won’t cut it)
5. Absent and cannot be located or produced
- Reasonably attempted to get their testimony by process of other means

CANNOT be used if the statement’s proponent procured or wrongfully caused the unavailability (forfeiture by wrongdoing)
Once you’ve proved unavailability under 804(a) you have unlocked the additional hearsay exceptions for unavailable declarants under 804(b)

Question 36

Hearsay exceptions: former testimony — FRE 804(b)(1)

Answer 36

Declarant unavailable

Testimony that
(A) was given as a witness at trial, hearing, or lawful deposition (current or former); and
(B) is now offered against a party who had
- (1) an opportunity and
(Even if the party doesn’t take/take advantage of the opportunity to cross, this is met. No opportunity in: affidavit, grand jury testimony, etc.)
- (2) similar motives to develop it by examining them (direct, cross, etc.)

Predecessor in Interst – In a civil case, this can also be against a party whose predecessor an interest had this opportunity.
- Common goals in developing testimony (“roughly commensurate stakes” - Volland-Golden)
- Same nucleus of operative facts.

Question 37

Prior testimony — 804(b)(1)

Factors to consider when determining if someone had a similar motive to cross

Answer 37

VOLLAND-GOLDEN: “Similar motive” is a factual inquiry. Four factors to consider when determining if someone had a similar motive:
The type of proceeding in which the testimony was given
Similarity in proceedings = similar motive to develop testimony
Trial strategy
The potential penalties or financial stakes
The number of issues and parties

Question 38

Hearsay exceptions: dying declarations — FRE 804(b)(2)

Answer 38

Declarant unavailable

Elements
1. In a HOMICIDE or CIVIL case (can’t be ANY other crimes)
2. Declarant makes a statement
(a) About the cause or circumstances of death
- Look for personal knowledge – suspicion about circumstances is not enough (Shepard v. United States - wife THINKS husband is poisoning her)
- Personal knowledge is REQUIRED under FRE 602
(b) While believing death to be imminent
- Judged under 104(a) preponderance
- Cardozo: “what is said must have been spoke in the hush of [death’s] impending presence” BUZZ
- Don’t actually have to die

Rationale: Reliable. “Don’t want to die with a lie on your lips” BUZZ

Question 39

Hearsay exception: statement against interest — FRE 804(3)

Answer 39

Statement that A reasonable person in the declarant’s position would have only made if they believed it were true because, when made, it was
(1) contrary to declarant’s propriety or pecuniary interest; or
(2) tends to invalidate declarant’s claim against someone else; or
(3) tends to expose declarant to civil or criminal liability; AND
- If it exposes declarant to criminal liability, is additionally corroborated and trustworthy.

Williamson v. United States (IMPORTANT)
Big Takeaway: to apply this exception, you must go through the statement LINE BY LINE. It must be only against self – cannot implicate someone else. Watch out for blame-shifting (does NOT come in)!

Question 40

Statement against interest 804(3) v. opposing party statement 801(d)(2)

Answer 40

804(3) can be a third party witness (not the D’s own statement) that is against the third parties interest

Question 41

Hearsay exceptions: forfeiture by wrongdoing — FRE 804(6)

Answer 41

Statement offered against a party that
1. Wrongfully caused (or complied in wrongfully causing) the declarant’s unavailability as a witness, and
2. Did so INTENDING that result
- Intended to prevent them to testify (Doesn’t have to be at THIS trial.)

A defendant who wrongfully and intentionally renders a declarant unavailable forfeits the right to exclude on hearsay grounds the declarant’s statements
Wrongdoing does NOT have to be criminal.

Question 42

Hearsay exception: Residual exception — FRE 807

Answer 42

SUPER rare. Almost never the right answer.
If you have no other options to get in a statement that would be hearsay and doesn’t fit under 803-804, turn to 807 as your last refuge.
The residual exception allows statements in if:
The statement is supported by sufficient guarantees of trustworthiness (TRUSTWORTHY); and
It is more probative on the point for which it is offered than any other evidence that the proponent can obtain (NECESSARY)
Case example = Dallas County - the newspaper was the best evidence.

Question 43

Confrontation Clause

Answer 43

Under the Confrontation Clause (based on 6th amendment), a statement will NOT be admitted when:

1. statement is definitionally hearsay (don’t care if it falls within exception/exemption)
2. statement is offered against the ACCUSED in a CRIMINAL trial
3. the declarant is unavailable (forfeiture by wrongdoing eliminate CC objection right)
4. The defendant had no prior opportunity to cross examine the declarant
5. The statement is “testimonial”

Question 44

When is a statement “testimonial”?

Answer 44

A statement is testimonial if the “primary purpose” of the statement was to “create an out-of-court substitute for trial testimony.” — Clark v. Ohio

Primary purpose relevant factors — Michigan v. Bryant
In determining the primary purpose of an interrogation, trial judges should look to “the statements and actions of both the declarant and interrogators” and OBJECTIVELY determine the purpose reasonably participants would have had.
Factors that bear on this objective primary purpose analysis:
1. The interrogation’s location
2. The victim’s motives in speaking
3. The victim’s medical condition
4. The interrogator’s motives in questioning
5. The interrogation’s formality

Question 45

Confrontation clause & police interrogations

Answer 45

If circumstances objectively indicate that the primary purpose of the police interrogation is to enable police to meet/stop an ongoing emergency = not testimonial.
If the circumstances objectively indicate the primary purpose is to establish facts relevant to an eventual criminal prosecution = testimonial.

Question 46

Hearsay & Confrontation Clause Venn Diagram

Answer 46

Barred by Hearsay Rule only:
- Certain previous statements by witness now on the stand (no CC problem, but still hearsay problem
- Non testimonial statements. Idle chatter by out-of-court declarant (plain-old hearsay, but likely not “testimonial”) (must be testimonial for CC to be invoked). Statements to friends and family are often not “testimonial”

Barred by CC only:
- Certain business records that fall into hearsay exceptions but still barred by 6th amendment (like crime lab report)
- Certain statements admissible as excited utterances

Barred by both:
- “Dear Chief of Police, my brother told me that he saw D rob the bank. I’m leaving and will never testify. Sincerely, D. Declarant”

Question 47

Burden Rule

Answer 47

Introducing the co-defendant’s confession against the defendant is not allowed when:
- The confession implicates defendant, and
- Admitting the concession violates the 6th amendment’s Confrontation Clause

Limiting instructions just aren’t going to work.

Question 48

Burdon Doctine & Redactions

Answer 48

Redacting a defendant’s confession incriminating another defendant where the redaction uses blank spaces or “deleted” does not satisfy Bruton – Gray v. Maryland

Problems with redactions:
- Too much redaction may distort reality.
- Confessor now looks WORSE as a result of dedication (only bad actor)

Question 49

Chambers & the Compulsory Process Clause

Answer 49

Bottom line: We won’t let rules of evidence strangle someone’s right to raise a defense. Constitutional Rights > Rules of Evidence

Rule: A criminal defendant’s due process rights are violated when the trial court prohibits the D from cross-examining his own witness and excludes hearsay testimony of statements against the witness’ penal interests when assurances of reliability warrant an exception from the hearsay rule
Strict application of the state’s rules of evidence violated the defendant’s due process rights 🡪 Constitutional rights trump rules of evidence

Question 50

Chambers v. Confrontation Clause

Answer 50

Chambers is the Flip side of the CC:
Confrontation Clause:
- Tightens the rules of evidence
- Places additional limits on prosecution

Chambers:
- Relaxes the rules of evidence to enable a defense
- If the proffered evidence is CRITICAL to defense and there is some reliability (“persuasive assurances of trustworthiness”), the court will allow it
- Due process trumps garden variety rules of evidence
- - If CRITICAL and RELIABLE, court will allow defense to do things / relax the FRE that they might not otherwise be able to do