Hearsay Flashcards
Definition of Hearsay
out of ct statement offered for the truth of the matter asserted
How to approach Hearsay Questions
- Ask—what is the evidence being offered to prove?
- Then apply rule
Admissibility of hearsay
Inadmissible unless exception/exclusion
Questions to Ask with Hearsay
- What was the statement made?
- What is being said?
- What is the statement being offered to prove?
Hearsay Terms
- Declarant- out of ct speaker
- Witness- comes ot ct to repeat hearsay
- Writing- used to prove an out of ct statement
Hearsay Rationale
No chance to cross examine at the time statement made
Statement
Can be spoken, written, or conduct intended as an assertion
(e.g. raising hand in class)
Conduct as hearsay
- Conduct intended to assert something, offered to prove that point
- E.g. raising hand to bartender is offered to prove person wanted a drink
- E.g. pointing in the direction of where the robber went when asked where he went.
- Conduct in response to a question is assertive. Answering the question asked by using conduct—statement.
Declarant
Hearsay declarant must be a person, not a machine or animal.
Definition of out of court
- Means declarant did not make this statement while on the stand testifying during the current proceeding.
- Where was the statement made?
- Even if the dec is on the stand or even if the statement was made during some other ct proceeding, you still have a hearsay issue.
Hearsay equation
- Out of court statement=offered to prove
- If these are the same, hearsay.
- But, if needed to prove someone is alive, any conduct is prove they’re alive. So, I’m alive statement isn’t to prove he’s alive, the conduct of saying anything at all is offered to prove he’s alive.
Common purposes hearsay is used that isnt for the truth of the matter asserted
- Impeachment (prior inconsistent statement offered to show dec not credible)
- Verbal acts
- Out of ct words that have independent legal significance. The words themselves create, alter, modify, or terminate legal rights of a person. Generally tortious or transactional languate.
- Ex:
- words of defamation
- words shoing transfer of property
- Alleged perjury statement
- words by adverse possesser showing adverse possession
- words of contract
- e.g. buyer says to seller i’ll buy your hourse for $500.00. Statement offered by buyer to show k for the sale of the horse. Not hearsay because kx are considered to be verbal acts
- D tells P you can borrow my car, but my brakes are slow offered to show P was on notice of brakes is NOT hearsay. Not offered to prove the brakes themselves were shot
Circumstantial evidence/state of mind
- E.g. a man’s statement that he’s napoleon Bonaparte. Offered to prove he’s not competent to write a will.
- Not hearsay
out of court statements that are not hearsay
- Certain out of ct statements are not hearsay, but not exceptions either. They’re just not hearsay even tho they meet definition
- These statements will be able to come in for the truth of the matter asserted.
Types of out of court statements that are not hearsay
C3PO.
- Co-Conspirator Statements
- Prior inconsistent statements
- Prior consistent statements
- Prior statement of identification
- Opposing party statement
For the three Ps, declarant must testify and be subject to cross examination
C:Co-Conspirator Statements
- Trial ct must find by PPOE that:
- Conspiracy existed
- Declarant member of the conspiracy
- Offerred against party opponenent who was a member of the conspiracy
- Statement must be made in the course of the conspirancy and in furtherance of the conspiracy
Other conspiracy rules
- Contents of statement are admissible ro ptove conspiracy, but need some other indepndent evidence a conspiracy existed.
- Judge can first let in statement of co-conspirator, subject to later independent proof of conspiracy
- Statement is admissible even if conspiracy not charged.
- Co-conspirator does not need to be around when admitted statements were being made
- Statement is admissible in civil and criminal cases.
- agreeing to break into the office is a conspiracy
- Buying blueprints and getting security schedule is independent evidence.
Rules applicable to all 3 Ps
- Declarant must be there testifying
- Must be subject to cross on facts underlying the statement or about making the statement itself
P1: Prior inconsistent statements
- Can be by contradiction or omission (leaving something out)
- Given under oath at a prior proceeding.
- Admissible for TOMA and to impeach as well.
- But if for TOMA, must be under oath.
P2: Prior consistent statements
- General rule: cannot be used for any purpose, rehabilitative or substantive
- Exceptions:
- To rebut a charge of fabrication based on improper motive
- E.g. counsel bribes a witness after a statement, wit gives testimony that is the same. Can use first statement to rebut.
- When witness impeached on other non-character ground (e.g. faulty memory and a prior consistent statement can be used to rehab.
- Can be something as simple as you don’t remember do you?
- Prior consistent statement need not be sworn
- If exception applies, can now be offered substantively as well
- To rebut a charge of fabrication based on improper motive
- Exceptions:
Rule for Rebutting a charge of improper motive
- Triggering event
- Cross-examination raises express or implied chare against the declarant of recent fabrication or improper influence or motive
- Timing requirement
- Prior consistent statement must have been made before the alleged undue influence
Prior Statements-VA Distinction
In VA, there is no hearsay exclusion or exception for
(1) prior inconsistent statements or
(2) prior consistent statements.
So only admissible for impeachment or rehab, not substantively unless another exception applies.
P3: Prior statement of identification
- Prior identification is not hearsay, as long as declarant:
- Testifies, and
- Is subject to cross-examination abour the statement
Prior statement of identification rules
- Declarant must testify. If declarant does not testify or refuses to answer questions on cross, 3rd party witness cannot testify about a statement of ID.
- If declarant does testify at trial and cannot recall, makes wrong ID or recants prior statement ( flipper witness ), 3rd party witness can testify as to a prior statement of identification.
Prior statement of identification admissibility
Admissible even if the witness identifies the wrong person at trial as long as the witness testified and was subject to cross.
Other things to know about prior identifications
- May include:
- Lineups
- Show-ups (drive up with defendant in back of police car)
- Photo array
- Police sketch
- In-court ID at prior proceeding
- Prior identification need not be recent or under oath
- Declarant need not be impeached before prior identification is admissible (exception to rule against bolstering)
- Prior identification is admissible whether or not the witness can make an in-court ID.
Prior Identifications-VA Distinction
Admissible in VA as a hearsay exception (nonhearsay in FRE)
O: opposing party statements
- Opposing party statement or admission is admissible because they’re not hearsay.
- Was mere exception in CL.
- Can state facts, opinions, or legal conclusions and there is no personal knowledge required.
- Can be either harmful or self-serving when made
- E.g. in an action for tax evasion, D stated a year earlier at a picnic that I made a million dollars last year
Opposing party statement testimony and admissions
- A party need not testify or be able to testify
- Need not be an admission, can be any statement
Opposing party statement VA Distinction
In VA, these are considered exceptions to the hearsay rule.
Adoptive opposing party statements/admissions
- a party adopts another person’s statement as true by words or conduct, incl. remaining silent.
- E.g. Did you kill that person Yes. Adoptive statement
Rules for silence as adoptive statement/admssion
- HURT
- H-Party heard the statement
- U-Party understood the statement
- R-Reasonable person under the circs would have
- T-taken exception
- Exception: D who is silent after being Mirandized.
Party’s own testimony as opposing party statement
Party cant offer their own testimony as an opposing party statement.
Spokesperson statements/admissions
- Statements by a person authorized to speak on behalf of a party.
- These are opposing party statements
Agent/employee statements
- Statements by employees admissible if:
- Made w/in scope of employment
- Made while emp is employed by D (employee need not be authorized to speak by the company)
- To prove the employment relationship (if disputed), the statement itself is some evidence. But you need additional independent evidence to prove the employment relationship
Hearsay Exceptions where declarant must be unavailable
- Former testimony
- Dying declarations
- statement against interest
Defining unavailable
(PRISM)
- P-privilege
- R- refusal to testify in the face of contempt
- I-infirmity or illness (death)
- S- service or subpoena won’t work (e.g. declarant is in North Korea)
- M- memory or lackthereof
Former testimony
- Statement made under oath at a prior trial, proceeding or deposition
- Statement now being offered against a party to the prior proceeding (or in civil cases, her predecessor in interest)
- The party against whom statement offered had a prior opportunity to examine the declarant at a prior proceeding
- Prior proceeding mut have been conducted for essentially the same reason, i.e. the reason or motive for both examinations is similar
- Declarant is unavailable
Dying declaration
- CUBA
- C-cause of death
- Statement must relate to the cause of death
- U- unavailable (doesn’t have to be dead)
- B-elief death was imminent
- Dec must have believed death was imminent
- A- All civil, if criminal, homicide only
- C-cause of death
- Personal knowledge is required
- Statement must relate to the cause of the apparently impending death
- Admissible for or against defendant in criminal homicide case
Dying declarations
VA Distinction
- The VA dying declaration applies in homicide prosecutions only.
- Does not apply in civil cases.
Statement against interest
- Statement of nonparty declarant is admissible hearsay if:
- Statement was against declarant’s interest when made (financial interest; criminal/penal interest, or would render invalid his claim against another);
- E.g. D said he made a million dollars in loan application, said he was broke when arrested for tax evasion. Loan app statement was in his interest. Exception doesn’t apply
- Reasonable person would bot have made the statement unless she believed it to be true when she made it; and
- Declarant unavailable
- Statement was against declarant’s interest when made (financial interest; criminal/penal interest, or would render invalid his claim against another);
Statement against interest rule for criminal cases
If statement tends to incriminate the declarant, the rule requires corroborating circumstances to indicate trustworthiness
Exceptions where unavailability doesn’t matter
23 total; the following are regularly tested on MBE:
- Present sense impression.
- Excited utterance.
- Then-existing state of mind.
- Statement for purposes of medical treatment.
- Recorded recollection.
- Business/absence of business records.
- Public/Absence of public records.
- Prior felony judgements.
- Learned treatises
present sense impression
- Statement (oral or written) that describes or explains an event or condition
- Made while declarant is perceiving the event or immediately thereafter
present sense impressions VA distinction
- The VA present sense impression exception requires the statement to be made while perceiving the event.
- No allowance is made for a statement made immediately after the event
excited utterance
- Startling event
- Causes declarant to be excited or shocked, and
- Statement relates to the event
- And is made while the declarant is under the stress of the event.
Then-existing state of mind
- Statement of declarant’s then-existing:
- State of mind
- Emotion or sensation
- Physical condition
Then-existing state of mind
Admissibility
Admissible to prove intent, plan, motive, mental feeling, pain.
Then-existing state of mind Present intent requirement
- Can include a statement of intent to prove future acts
- No statements of memory or belief- statements of then-existing state of mind must look forward.
- Exception-wills
- Wills exception permits a statement or memory or belief. Don’t look back, but where there’s a will, there’s a way
- Exception-wills
Statement for purposes of medical treatment
- Statement made by pt, fam member, good samarita to medical person, doctor, ambulance attendant, etc..
- For purpose of diagnosis or trtmt
- Describes medical history, symptoms, pain or sensation that cause (but not fault) or injury,
- If reasonably pertinent to diagnosis or trtmt
Recorded recollection
- Witness cannot recall—even if you try to refresh recollecton
- Document of an event, and the document:
- Relates to facts witness cannot presently remember, but did know earlier
- Written or adopted (signed) by witness
- When facts were fresh in witness’s memory
- Document of an event, and the document:
Recorded recollection
limitations and requirements
- contents can only be read into evidence, the jury will not receive the document as an exhibit. BUT adverse party can enter doc in as exhibit if they want.
- Witness will need to be there to show they don’t recall
Business records
- Authenticated-custodian or otherwise qualified witness (familiar with records) or FRE 902(11) certificate filed
- Record made contemporaneously with business transaction (at or near the time)
- Record made by person with knowledge of facts (sales clerk, bookkeeper, etc.)
- Made or kept in the normal course of bisiness (customary to keep records to this type; business duty to report)
- Admissible hearsay to prove the contents of the record unless opponent shows the record is suspicious or unreliable
Absence of business records
- Transactions recorded per business records exception—same time, person with knowledge, regular course of bisiness
- All transactions of this type recorded
- Custodian or person familiar with records authenticates
- Diligent search or records fails to show transaction occurred.
Business Records-VA Distinction
No provision allowing business records to be admissible to prove the nonoccurrence or nonexistence of a matter.
Public records/reports
- Records, statements, data compilations (any form) of a government (public) agency (federal, state, local, foreign) that decribes one of three areas unless the opponent shows that the sources appear untrustworthy:
- The activities of the agency–e.g. treasury receipts
- Any matter observed by a public official with a duty to observe and report-e.g. collision report
- Law enforcement reports against a D in a criminal trial (e.g. police reports) are inadmissible.
- Investigative reports in civil cases, and aganst the govt in criminal cases, incl. factual findings and opinions and conclusions-e.g. eeoc investigative reports
Absence of public records or vital statistics
- Evidence that a diligent search failed to reveal public record or vital statistic
- Testimony by qualified witness or certification from the custodian of public records
Public Records-VA Distinction
VA exception doesnt apply to records of investigatory factual findings
Prior felony judgements
- Evidence of a final judgement of conviction after guilty plea or trial
- Must be a felony
- The evidence is admissible to prove any fact essential to the judgement
- Civil and criminal. But, if offered by the prosecutor in a criminal case, it must be a judgement against the defendant (not a third party)
Hearsay within hearsay
- Multiple hearsay is admissible if each statement meets some hearsay exception or exclusion.
- Most common situation is written business or public records that contain hearsay entries
Sixth amendment hearsay- Crawford rule
- In criminal cases, prosecution cannot offer in:
- Testimonial hearsay (even when it falls w/i a hearsay exception, unless:
- D has opportunity to cross declarant at trial, or
- Declarant is unavailable and defendant had a prior opportunity to cross declarant
- Testimonial hearsay (even when it falls w/i a hearsay exception, unless:
Definiton of testimonial for Crawford rule
911 calls and other statements to law enforcement
- Determine the primary prupose.
- Calls for help by declarant=nontestimonial
- 911 call or other statements providing information to help police with their case (e.g. police interrogations or former trial testimony) = testimonial
- Even if statement is Help! This person is attacking me!
- When 911 turns into 411, it’s testimonial
Definiton of testimonial for Crawford rule-
forensic analysis reports
- Report that has the effect of accusing a targeted person of criminal conduct is testimonial. If analyst who drafted the report is unavailable to testify, there may be a confrontation clause violation
