Hearsay Flashcards
Hearsay is…
An out-of-court statement offered to prove the truth of the matter asserted.
Non-Hearsay
- Legally Operative Facts
- Effect on Recipient
- State of Mind
Legally Operative Facts
A statement offered to prove it was made, regardless of its truth, is non-hearsay.
Effect on Recipient
Non-Hearsay
A statement offered to show the effect on the person who heard it (e.g. notice, knowledge) is non-hearsay.
State of Mind
Non-Hearsay
A statement offered as circumstantial evidence of the speaker’s mental state is non-hearsay.
Non-Hearsay Exclusions
- Prior Inconsistent Statement
- Prior Consistent Statement
- Prior Identification
- Party Opponent Statement
Prior Inconsistent Statement
A prior inconsistent statement made under the penalty of perjury at a trial, hearing, proceeding, or in a deposition may be admissible for impeachment purposes AND substantive evidence.
*Declarant must be available
NOTE: A prior inconsistent statement not made under penalty of perjury is only admissible to impeach a witness, whether or not the declarant is available.
Prior Consistent Statement
A prior consistent statement, whether made under oath or not, can be admissible for substantive purposes to rebut a charge of fabrication (only if it was made before the declarant had reason to fabricate it) or an attack on witness’s credibility.
Declarant must be available
Prior Identification
Non-Hearsay Exclusion
A previous out-of-court identification of a person after perceiving that person may be admissible as substantive evidence.
Declarant must be available.
NOTE: Admissible even if the witness has no memory of the prior identification, because the witness is subject to cross-examination.
NOTE: Another witness who was present may testify about the prior identification.
Party Opponent Statement
A statement made by the party to the current litigation being offered by an opposing party may be admissible as a non-hearsay exclusion.
Declarant availability immaterial
This includes adoptive admissions, silent admissions, and vicarious admissions
Adoptive Admissions
A statement of another party that a party expressly or impliedly adopts as his own.
Silent Admissions
Silence is considered an adoptive admission if:
1) the person understood the statement;
2) the person had the ability and opportunity to deny it; and
3) a reasonable person similarly situated would have denied the statement.
Vicarious Admissions
Statement made by one person imputed to another based on the relationship between them
Vicarious Admissions between Employer and Agent
A statement made by a party’s employee or agent constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship
Reasons for Declarant Unavailability
- Exempt on the grounds of privilege
- Refuses to testify depsite a court order to do so;
- Lacks memory of the subject matter of the statement;
- Is unable to testify due to death, infirmity, or physical or mental disability;
- Is absent and cannot be subpoenaed or otherwise made to be present
Hearsay Exceptions
- Former Testimony
- Dying Declaration
- Statement Against Interest
- Present Sense Impression
- Excited Utterance
- Then-Existing State of Mind
- Statement Made for Medical Diagnosis
- Business Record
- Public Record
- Learned Treatise
- Past Recollection Recorded
Elements of Former Testimony
Hearsay Exception
- Statement must have been made under oath;
- Must deal with similar/identical issues;
- Must ensure that the party against whom it’s offered had the opportunity to cross; AND
- Declarant must be unavailable.
Elements of Dying Declaration
Hearsay Exception
- Must be a civil or homicde case;
- The declarant must believe that their death is imminent;
- The statement must pertain to the cause or circumstances of the death they believe to be imminent; AND
- Declarant must be unavailable.
Elements of Statement Against Interest
Hearsay Exception
- Must be contrary to the declarant’s pecuniary, proprietary, or penal interests;
- Would not have been made by a reasonable person unless he believed it to be true; and
- Declarant must be unavailable.
NOTE: Be careful not to confuse statement against interest with an admission. If you are going between the two, admission > statement against interest.
Present Sense Impression
Hearsay Exception
A statement made describing or explaining an event or condition that is made while or immediately after the declarant perceived it.
Excited Utterance
Hearsay Exception
A statement made about a startling event or condition while the declarant is under the excitement that it caused.
NOTE: Declarant need not be a participant in the event
Then-Existing State of Mind
Hearsay Exception
A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition.
This includes a statement of present intent, motive, or plan and can be used to prove conduct in conformity with that state of mind
NOTE: When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at the time can be used to prove the existence of that condition, but not its cause.
Statement Made for Medical Diagnosis
Hearsay Exception
A statement describing medical history or past or present symptoms made for the purpose of medical diagnosis or treatment.
NOTE: The statement need not be made to a physician or by the person seeking treatment
Business Record
Hearsay Exception
A record of an act, condition, opinion, or diagnosis is not excluded as hearsay if:
1. The record was kept in the course of a regularly conducted activity of a business or organization;
2. The making of a record was a regular practice of that activity; AND
3. The record was made at or near the time by (or from information transmitted by) someone with knowledge.
NOTE: Be careful about records that contain the statements of others, as they often implicate double hearsay.
Public Record
Hearsay Exception
A record or statement of a public office or agency that sets out:
1. The activities of the office or agency;
2. An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case by the prosecution); OR
3. Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.
Learned Treatise
Hearsay Exception
A statement contained in a treatise, periodical, or pamphlet is substantively admissible where:
1. An expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross examination; AND
2. The publication is established as a reliable authority by admission of testimony of the expert, by another expert’s testimony, or by judicial notice.
NOTE: If admitted, the statement is read into evidence, but the publication itself is not received as an exhibit.
Past Recollection Recorded
Hearsay Exception
- The record is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately;
- The record was made or adopted by the witness when the matter was fresh in the witness’s memory; AND
- The record accurately reflects the witness’s knowledge.
NOTE: If admitted, the record may be read into evidence, but may be received as an exhibit only if offered by an adverse party.
