Hearsay

Question 1

What is the 4-step (possibly 5-step) analysis for every hearsay problem?

Answer 1

1. Is the evidence relevant under 401?
2. Is the evidence hearsay under 801?
3. Do any hearsay exceptions apply under 803-807?
4. Should the evidence be excluded under 403?

**If the government offers hearsay in a criminal prosecution, there’s a 5th step in the analysis:

5. Do confrontation problems arise under the 6th Amendment?

Question 2

What is the definition of hearsay?

Answer 2

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

Question 3

What does “out-of-court” mean?

(for hearsay)

Answer 3

A statement is considered out-of-court if it was not made in the present proceeding.

Question 4

What is the best way to begin to break down a hearsay problem?

Answer 4

The best way to begin is by identifying:

–the declarant
–the hearsay witness, and
–each layer of hearsay

Question 5

Who is the “declarant”?

Answer 5

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.

Question 6

What is a “hearsay document”?

Answer 6

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.

Question 7

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.

Answer 7

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.

Question 8

What do FRE 801 and 802 provide?

Answer 8

801 defines what qualifies as hearsay.
802 provides that hearsay is inadmissible except as provided in the FRE.

Question 9

What are the “definitional loopholes” under 801? (explain what they are and then list the 5 broadly)

Answer 9

There are 5 categories of loopholes in 801. If any of the 5 loopholes apply, the evidence in question is not hearsay.

1. Definition of “statement” in 801(a)
2. Definition of “declarant” in 801(b)
3. Definition of “hearsay” purpose in 801(c)
4. Exclusion under 801(d)(1) of certain prior statements by witnesses
5. Exclusion under 801(d)(2) of certain admissions by party-opponents

Question 10

What does 801(a) definition of “statement” provide?

801 loophole

Answer 10

excludes nonverbal conduct unless intended as an assertion

Question 11

What does 801(b) definition of “declarant” provide?

Answer 11

Excludes statements by animals and machines.

Question 12

What does 801(c) definition of “hearsay” purpose provide?

Answer 12

Excludes all purposes other than proving the truth of the matter asserted; case law recognizes at least 6 categories of purposes excluded from the definition of hearsay.

Question 13

What are the 6 categories of purposes excluded from the definition of hearsay under 801(c) definition of “hearsay” purpose? (just list categories)

Answer 13

1. Impeachment
2. Verbal Act
3. Effect on listener or reader
4. Verbal object/verbal marker
5. Circumstantial evidence of state of mind
6. Circumstantial evidence of knowledge, memory, or belief.

Question 14

List and define each of the 6 categories of purposes excluded from the definition of hearsay under 801(c) definition of “hearsay” purpose?

Answer 14

1. Impeachment - - showing the inconsistency between present testimony and a prior statement by the same witness (not necessarily under oath), as opposed to proving the truth of the matters asserted in the prior inconsistent statement.
2. Verbal act - - proving an act (or part of an act) that is completed merely by the utterance or writing of the words, especially when such use of the words is an element of the plaintiff’s claim or is an element of the offense in a criminal case.
3. Effect on listener or reader - - showing that the utterance or writing of the words has some legally significant effect on the listener or reader, such as putting her on notice.
4. Verbal object/Verbal marker - - relying on the words as an identifier, instead of relying on their assertive aspect.
5. Circumstantial evidence of state of mind - - proving indirectly a persons state of mind (if the words directly prove the declarants state of mind, they are hearsay due to their directly assertive aspect, but they may still be admissible under 803(3)
6. Circumstantial evidence of knowledge, memory, or belief - - suggesting the mere utterance or writing of the words indicates a person has very distinctive knowledge, which is evident without considering the assertive content of the words.

Question 15

What does 801(d)(2) - Exclusion of certain admissions by party-opponents provide? When does it apply?

Answer 15

Allows the use of a party’s out-of-court statement against that party (as opposed to the use of such a statement by the party that made the statement) if the statement is…

1. Party’s own statement
2. Someone else’s statement that the party has adopted
3. Statement of person whom the party has authorized to make a statement of the subject.
4. Statement of party’s agent concerning matter within scope of agency.
5. Statement of co-conspirator.

Question 16

Explain each of the 5 below:

Under 801(d)(2) - exclusion of certain admissions by party-opponents - allows the use of a party’s out-of-court statement against that party if the statement is….

1. Party’s own statement –
2. Someone else’s statement that the party has adopted - -
3. Statement of person whom the party has authorized to make a statement of the subject - -
4. Statement of party’s agent concerning matter within scope of agency - -
5. Statement of co-conspirator - -

Answer 16

Allows the use of a party’s out-of-court statement against that party if the statement is….

1. Party’s own statement – this is the most common category of out-ofcourt
   statements excluded from the definition of hearsay;
2. Someone else’s statement that the party has adopted - - including
   statements adopted tacitly by the party’s silence (but watch out for post Miranda
   silence in a criminal case);
3. Statement of person whom the party has authorized to make a statement of the subject - - usually a lawyer, broker, etc. (note that the contents of the statement may be used, but are not alone sufficient, to
   establish the declarant’s authority to make the statement);
4. Statement of party’s agent concerning matter within scope of agency - - need not be specifically authorized by the party, but must be made during the existence of the agency relationship (note that the contents of the statement may be used, but are not alone sufficient, to establish the existence of the agency relationship; and
5. Statement of co-conspirator - - must meet three requirements:
   1) must be made by a declarant who is conspiring with the party,
   2) must be made during the pendency of the conspiracy, and
   3) must be made in furtherance of the conspiracy (the contents of the statement may be used, but are not alone sufficient, to show the existence of the conspiracy, and the participation by the declarant and the party in the conspiracy).

Question 17

Describe generally the first definitional loophole under 801 - “out of court”.

Answer 17

out of court - -

–if the evidence in question is testimony in court during the present proceeding, it is not considered hearsay.

–if the statement was made outside the courtroom, or inside the courtroom but during a different proceeding, then the statement meets the “out of court” requirement for purposes of 801, and the statement could possibly be considered hearsay.

Question 18

Describe generally the 3rd definitional loophole under 801 - “declarant”.

Answer 18

Only statements made by human declarants can qualify as hearsay.

An animal is not a declarant for purposes of hearsay definition.

A machine generally is not a declarant either unless the machine is simply repeating a human assertion (eg a computer displaying an email message or an answering machine that has recorded a telephone message)

Question 19

Describe generally the 4th definitional loophole under 801 - “offered for the truth of the matter asserted”.

Answer 19

An out-of-court statement is not considered hearsay unless the proponent of this evidence offers it to prove “the truth of the matter asserted”.

The key question is: whether the proponent is relying on the assertive aspect of the statement.

Examples of non-hearsay purposes include:
1) use of the statement for impeachment,
2) use of the statement as a verbal act,
3) use of the statement to show its effect on the listener or reader,
4) use of the statement as a verbal object/marker,
5) use of the statement as circumstantial evidence of the declarant’ s state of mind, and
6) use of the statement as circumstantial evidence of the declarant’s knowledge,
memory or belief.

Question 20

What are the 6 examples of non-hearsay purposes under the 4th definitional loophole of 801 - “offered for the truth of the matter asserted”?

Answer 20

1) use of the statement for impeachment,
2) use of the statement as a verbal act,
3) use of the statement to show its effect on the listener or reader,
4) use of the statement as a verbal object/marker,
5) use of the statement as circumstantial evidence of the declarant’ s state of mind, and
6) use of the statement as circumstantial evidence of the declarant’s knowledge,
memory or belief.

Question 21

Describe generally the 5th definitional loophole under 801 - Certain prior statements and admissions excluded from hearsay definition under 801(d)(1) and 801(d)(2).

Answer 21

A statement that meets the requirements of 801(d)(1) or 801(d)(2) is not considered hearsay

Question 24

Describe generally the second definitional loophole under 801 - “statement”.

Answer 24

In order to qualify as a statement, the evidence in question must be an oral assertion, a written assertion, or nonverbal conduct that was intended as an assertion.

Anything else cannot qualify as a statement for purposes of the hearsay definition.

In other words, nonverbal conduct can’t be hearsay unless the actor intended this conduct to be an assertion.

Question 25

If the proposed evidence fits into one of the five loopholes in the hearsay definition under 801, the evidence is _________

Answer 25

NOT HEARSAY

Question 26

When does 801(d)(1) - Exclusion of certain prior statements by witnesses apply? and what does it provide regarding prior inconsistent statements, prior consistent statements, and prior statements of identification?

Answer 26

Applies only if the witness is testifying under oath in the present proceeding, and cross-examination is possible concerning the prior statements (note: in this situation, the testifying witness is the same person as the out-of-court declarant)

1. Prior inconsistent statement - - previous statement must have been given under oath, and at a trial, a hearing, or another proceeding, or in a deposition (but an out-of-court affidavit usually doesn’t count)
2. Prior consistent statement - - previous statement need not have been given under oath, but this exclusion is only available where the other side has claimed or implied that the witness/declarant has a bias, has been subject to improper influence, or has a motive to fabricate testimony (of course, the previous statement must predate the alleged bias, improper influecne, or motive to fabricate)
3. Prior statement of identification - - previous statement was made to identify a person after the witness/declarant perceived that person.

Question 27

Why do we not freely admit hearsay?

Answer 27

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.

Question 28

What are multiple layers of hearsay?

Answer 28

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.

Question 29

Who is the “hearsay witness”?

Answer 29

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)

Question 30

What does “offered to prove the truth of the matter asserted” mean?

Answer 30

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”

Question 31

What does “statement” mean?

(for hearsay)

Answer 31

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.