Hearsay Flashcards
What is hearsay? Why do we care?
Hearsay is an out of court statement, intended as an assertion, which is offered to prove the truth of the matter asserted
Unless it is non hearsay or meets an exception, hearsay is inadmissible
What are the 4 risks associated with hearsay?
1) memory
2) perception
3) narration
4) sincerity
Declarant
Person who made the out of court statement
True or False: the Declarant and witness are one and the same
False. While the Declarant and witness may be the same person, they don’t have to be
Why is the knowing the Declarant important?
Special rules may apply. For example, if the Declarant is the witness the prior statement rule may be in play. There are also 6th amendment concerns if the Declarant does not ever appear in court in a criminal trial
True or False: the Declarant must be a person
True. A parrot cannot commit hearsay. Nor will an response generated by a computer be hearsay
What is the requirement that it be “intended as an assertion”
The statement was meant to communicate some idea. For example, groaning in pain is not intended as an assertion, necessarily
True or False: hearsay must be spoken
False. It can be non-verbal conduct or written, so long as it was intended as an assertion
A videotape could even be hearsay! In what circumstance would it be
If the video was performative/intended to be assertive conduct. The example is the guy who filmed himself to show his day to day activities
True or False: a deposition is “a current trial or hearing”
False
A cashier is seeking to testify in a robbery case. His testimony is: “It was 11:00 when the man entered the store. I know because the church bell next door went off.” The church next to the convenience store has an automated bell. Is the statement admissible?
Yes, so long as it can be proved that the bell is reliable. The bell ringing is not intended as an assertion as the automated system cannot make an assertion. If it were rung by a person, there would be hearsay issues, because the person ringing the bell would be asserting it is 11:00
True or False: A statement is not hearsay if it is offered to show the effect on the listener, reader, or observer to prove reasonable reliance
True
A statement is not hearsay if it is offered for the purpose of —
Impeachment
What is the rule for hearsay within hearsay?
Each instance of hearsay must be admissible
True or False: certain statements are not hearsay because they contain legal significance
True. Examples include offer, acceptance, or defamatory statements
A — assertion will be hearsay if it depends on the — —
Indirect
Declarant’s credibility
801(d) provides 2 instances in which an otherwise hearsay statement will be not hearsay. What are they
1) Declarant witness’s prior statement
Or
2) opposing party’s statement
What are the requirement of 801(d)(1)?
1) Declarant is the witness testifying
And testimony is
2a) inconsistent with a testimony or statement offered under penalty of perjury at a TRIAL, HEARING, OR OTHER PROCEEDING OR IN A DEPOSTION
2b) prior consistent statement to i) rebut an express or implied charge of recent fabrication or ii) rehabilitate defendant’s credibility when attacked on another ground
What are the requirements of 801(d)(2)?
1) statement is being offered against an opposing party and the statement being offered was made by the party in an individual or representative capacity
True or False: a testifying declarant’s out of court identification of someone is admissible even though it is hearsay
True. Covered by 801(d)(1)(c)
What kinds of statements are covered by 801(d)(2)
A) made by the opposing party directly
B) manifested or adopted or believed to be true
C) person or party authorized to make statement
D) agent or employee in scope of employment
E) Co-conspirator in furtherance of conspiracy
Does a lack of memory generate inconsistency such that a prior inconsistent statement can be brought in under 801(d)(1)?
No, not if the lack of memory is genuine. If its fake, then such evidence may be permissible
