Hearsay

Question 1

Define hearsay?

Answer 1

Out of court statement offered to prove the truth of the matter asserted. Inadmissible unless an exception applies. FRE 801

Memorize this definition.

Question 2

Who qualifies as a declarant for hearsay?

Answer 2

Must be a human being. Evidence from animals and machines are not statements (e.g. dog barking or machine printout).

Question 3

What is considered a statement for hearsay purposes?

Answer 3

• Oral assertion; • Written assertion; or • Nonverbal conduct/gestures, if the person intended it as an assertion (e.g. shaking your head “yes”). FRE 801

Question 4

What type of statements do not constitute ‘offering to prove the truth of the matter asserted,’ and thus are considered nonhearsay?

Answer 4

1. Statements that have independent legal significance (e.g. tortious words, defamation, transactional words (“I accept the offer”); 2. Statements to prove the state of mind of the declarant or the listener; 3. Statements to show the effect on the listener (e.g. to show D saying “I’m going to kill you” frightened P); 4. Statements offered solely for impeachment.

Be careful: Some statements are admissible because they are nonhearsay. Some statements are admissible because they are hearsay and qualify under an exception.

Question 5

Are statements by an opposing party admissible as nonhearsay?

Answer 5

Yes, out-of-court statements made by a party to the litigation are always admissible as nonhearsay when offered by the opposing party.

Ex. Max is suing Ian for negligence. All of Ian’s and Max’s out-of-court statements are admissible.

Question 6

What type of opposing party statements are considered nonhearsay according to the FRE?

Answer 6

1. Judicial/personal admissions 2. Adoptive admissions 3. Representative/vicarious admissions by: • Agent/employee in scope of relationship; • Authorized speaker; or • Co-conspirators. FRE 801(d)(2)

Question 7

What type of declarant-witness statements (that would otherwise be hearsay) are considered nonhearsay according to the FRE?

Answer 7

1. Prior sworn inconsistent statements; 2. Prior consistent statement; and 3. Prior identification.

Remember: These are not hearsay exceptions. They are considered nonhearsay, or “hearsay exemptions.” FRE 801(d)(1)

Question 8

Define judicial admission

Answer 8

Statement by a party in the current litigation that was either made in the pleadings, during discovery, or during trial. Admissible as nonhearsay.

Question 9

What is an adoptive admission?

Answer 9

Statement made by another person that the party adopts/agrees with. Two ways to adopt: 1. Expressly (clear words of agreement); or 2. By silence if: 1. The party heard and understood the statement and was given an opportunity to respond; 2. A reasonable party would have denied/responded to the statement; and 3. The party did not deny or respond.

Note: Failure to respond during a custodial interrogation after Miranda warnings does not constitute an adoptive admission. FRE 801

Question 10

What is a representative or authorized admission? (also called a vicarious admission)

Answer 10

Statement made by another that is imputed to the party, either because the party authorized it or has a special relationship with the speaker. Three types: 1. Statements made by employee/agent; 2. Statements made by authorized speaker; and 3. Statements made by co-conspirators.

Question 11

When do statements made by employee/agent constitute vicarious admissions?

Answer 11

If the statements were: 1. About matter within the scope of employer-employee relationship; and 2. Made during the existence of the relationship. FRE 801(d)(2)(D)

Question 12

When are the statements of co-conspirators considered vicarious admissions?

Answer 12

When the statements were made during and in furtherance of the conspiracy. FRE 801(d)(2)(E)

Question 13

Name the 3 types of prior statements that are considered nonhearsay. What is required to admit them?

Answer 13

1. Prior sworn inconsistent statements; 2. Prior consistent statements; and 3. Prior statements of identification. In order to be admissible, the declarant must: 1. Testify at the present trial; and 2. Be subject to cross-examination.

Be extremely careful about fact patterns with prior statements when the declarant is not available to testify. Unless the declarant is currently testifying, the statements will be inadmissible.

Question 14

When is a prior inconsistent statement admissible as both substantive evidence AND evidence to impeach?

Answer 14

If: 1. The declarant is available to testify and subject to cross-examination; and 2. The prior inconsistent statement was a sworn statement under penalty of perjury at a prior trial, hearing, deposition, or other legal proceeding.

Note: If the statement was not made under oath, it cannot be admitted for substantive evidence. Only for impeachment purposes. This is tricky, so watch out. FRE 801(d)(1)(A)

Question 15

When is a prior inconsistent statement only admissible to impeach? (and not as substantive evidence)

Answer 15

If the statement was not made under oath, it will only be allowed to impeach. If the statement was made under oath, it is admissible to impeach and as substantive evidence.

Question 16

When is a prior consistent statement admissible as nonhearsay?

Answer 16

If: 1. Declarant is a currently testifying witness and subject to cross-examination; and either: 2. Statement is offered to rebut charge that declarant recently fabricated testimony or was subject to undue influence or motive; or 3. Statement is to rehabilitate the declarant’s credibility as a witness when attacked on another ground. FRE 801(d)(1)

Question 17

When is a prior identification admissible as nonhearsay?

Answer 17

Admissible as substantive evidence if: 1. Declarant is a currently testifying witness and subject to cross-examination; and 2. Witness identified the person prior to trial (e.g. in a lineup). FRE 801(d)(1)(C)

Question 18

What is the hearsay exception for present sense impressions?

Answer 18

Statement is admissible if: 1. It describes or explains an event; and 2. Made during the event or immediately afterwards.

Ex. “A red car is driving next to us.” FRE 803(1)

Question 19

What is the hearsay exception for excited utterances?

Answer 19

Statement is admissible if it: 1. Relates to a startling event or condition; and 2. Was made while the declarant was under the stress of excitement that it caused.

Ex. “Oh my gosh, look, the house across the street is on fire!!” FRE 803(2)

Question 20

What is the hearsay exception for a statement concerning a mental, emotional or physical condition?

Answer 20

Admissible if it’s a statement about the declarant’s then-existing: 1. State of mind (such as motive, intent, or plan); or 2. Emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).

Note: Statements of memory or belief about the events are inadmissible. The statements must be about what the declarant was experiencing at the time it was said. FRE 803(3)

Question 21

When is a statement of memory or belief admissible under the then-present mental state exception to hearsay?

Answer 21

When it relates to the validity or terms of the declarant’s will.

Question 22

What is the hearsay exception for statements made for purpose of medical diagnosis or treatment?

Answer 22

Statement is admissible if it: 1. Was made to medical personnel (doctors, nurses, or anyone involved in treatment); 2. Was made for - and is pertinent to - medical diagnosis or treatment (e.g. describes medical history; past or present symptoms or sensations; their inception; or their general cause). FRE 803(4)

Question 23

What is the hearsay exception for past recollection recorded?

Answer 23

Recorded recollection is admissible if: 1. The record is on a matter that the witness once knew about but cannot recall well enough to testify on; 2. The record was made or adopted by the witness when the matter was fresh in the witness’s memory; and 3. The record accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. FRE 803(5)

Question 24

What are the rights of an adverse party when past recollection recorded is used?

Answer 24

1. Inspect the writing; 2. Cross-examine with it; 3. Show it to the jury for comparison; and 4. Introduce relevant portions into evidence for its truth.

Question 25

What is the hearsay exception for business records?

Answer 25

A record of an act, event, condition, opinion, or diagnosis is admissible if: 1. The record was made in the regular course of business; 2. The record was made “at or near the time” of the matter recorded; 3. Record was made by an employee of the business with knowledge of the matter recorded. FRE 101(b)(4); 803(6)(A)–(C)

Question 26

Under the business records exception, is evidence showing an absence of an entry in record admissible?

Answer 26

Yes, omission may be admitted to show the matter did not occur or exist if: 1. Records were regularly kept for a matter of that kind; and 2. Opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness. FRE 803(7)

Question 27

What is the hearsay exception for public records and reports?

Answer 27

A record or statement of a public office is admissible if it sets out: 1. The office’s activities; 2. A matter observed while under a legal duty to report (except in a matter observed by law-enforcement personnel in a criminal case); 3. Factual findings from a legally authorized investigation for civil case or against gov. in criminal case; and 4. The source of information nor other circumstances indicate a lack of trustworthiness. FRE 803(8)

Question 28

If a business record quotes someone who doesn’t work for the business (i.e. a witness in a police report), is it admissible?

Answer 28

No, this is multiple hearsay. The statement will require another hearsay exception to be admitted.

Question 29

What is the hearsay exception for records of vital statistics?

Answer 29

Records of a birth, death, or marriage are admissible if reported to a public office in accordance with a legal duty. FRE 803(9)

Question 30

What is the hearsay exception for learned treatises?

Answer 30

A statement contained in a treatise, periodical, or pamphlet is admissible if: 1. Statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and 2. Publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. FRE 803(18)

Question 31

What are the hearsay exceptions if the declarant is unavailable?

Answer 31

1. Former testimony; 2. Statement against interest; 3. Dying declaration; 4. Statement of personal or family history; and 5. Statements against party that caused declarant to be unavailable.

Question 32

When is the declarant considered unavailable?

Answer 32

If declarant: 1. Is exempt because of a privilege; 2. Refuses to testify despite a court order to do so; 3. Incapacitated due to either death, physical or mental illness; 4. Has faulty memory of the subject matter; or 5. Cannot be subpoened or compelled to attend. FRE 804(a)

Question 33

What happens if the proponent caused the declarant to be unavailable?

Answer 33

If the proponent procured or wrongfully caused the declarant’s unavailability to prevent the declarant from attending or testifying, the declarant will not be considered unavailable. FRE 804(a)

Question 34

When does the hearsay exception for former testimony apply?

Answer 34

Former testimony is admissible if: 1. Declarant is unavailable; 2. Testimony was given under oath as a witness at a trial, hearing, or lawful deposition (either the current one or a different one); and 3. The party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct, cross-, or redirect examination (i.e. the prior cross-examination is a reasonable substitute for cross-examination in the current case). FRE 804(b)(1)

Question 35

Do sworn affidavits or statements qualify for the former testimony exception?

Answer 35

No because they are not considered hearings or proceedings.

Question 36

Is grand jury testimony admissible under the former testimony exception?

Answer 36

No, but may be admissible as a prior inconsistent statement.

Question 37

When does the exception for dying declarations apply?

Answer 37

1. The proceeding is either a homicide case or civil case; and 2. Declarant is unavailable; 3. Declarant believed death was imminent; and 4. Statement was about the cause or circumstances surrounding the declarant’s imminent death. ## Footnote Note: The declarant does not need to be dead, only unavailable. FRE 804(b)(2)

Question 38

When does the exception for a statement against interest apply?

Answer 38

1. Declarant is unavailable; 2. Statement is against the declarant’s proprietary or pecuniary interest or would expose the declarant to civil or criminal liability; and 3. A reasonable person in the declarant’s position would not have made the statement unless she believed it to be true. And, if it is a criminal case or the statement exposes declarant to criminal liability: 4. Statement must be supported by corroborating circumstances that clearly indicate its trustworthiness. FRE 804(b)(3)

Question 39

What is the difference between an opposing party statement and a statement against interest?

Answer 39

Opposing party statement: • Must be made by an opposing party in the suit • Does not need to be against party’s interest • Declarant does not need to be unavailable. Statement against interest: • Can be made by anyone • Must be against party’s interest (e.g. “It was me who killed her”) • Declarant must be unavailable. ## Footnote Essentially, remember this, a statement against interest can never be made by a party opponent. Why? Because party opponents must be available and present at trial, otherwise it would violate their constitutional right to confrontation.

Question 40

When does the hearsay exception for statement of personal or family history apply?

Answer 40

1. Declarant is unavailable; and 2. Statement is regarding the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, or other familial relationship; or 3. Statement concerns another person’s family history and the declarant is so intimately associated with the person’s family that the declarant’s information is likely to be accurate. FRE 804(b)(4)

Question 41

When does the hearsay exception for forfeiture by wrongdoing apply?

Answer 41

If a party wrongfully causes the declarant’s unavailability to prevent them from testifying, the party is barred from objecting to the witness’ testimony as hearsay (i.e. trying to prevent a witness from testifying will completely backfire). FRE 804(b)(6)

Question 42

What is the residual hearsay exception?

Answer 42

A hearsay statement that is not covered under FRE 803 or 804 may be admissible if: 1. Statement has equivalent circumstantial guarantees of trustworthiness; 2. It is offered as evidence of a material fact; 3. It is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain.

Question 43

What is the residual hearsay exception?

Answer 43

A hearsay statement that is not covered under FRE 803 or 804 may be admissible if: 1. Statement has equivalent circumstantial guarantees of trustworthiness; 2. It is offered as evidence of a material fact; 3. It is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain; and 4. Admitting it will best serve the purposes of the FRE and the interests of justice.

Question 44

What is the importance of the Confrontation Clause (in an evidentiary context)?

Answer 44

Provides that testimonial hearsay against a criminal D who has not had the opportunity to cross-examine the declarant, violates D’s 6th Amendment right to 'confront the witnesses against him.'

Question 45

What is testimonial evidence in the context of the Confrontation Clause?

Answer 45

1. Prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and 2. Police interrogations (unless during an emergency). ## Footnote See Crawford v. Washington

Question 46

When can testimonial evidence be admitted without violating the Confrontation Clause?

Answer 46

1. Declarant is unavailable; and 2. Criminal D had a prior opportunity to cross-examine the declarant. ## Footnote ⚠️ Remember: A criminal D forfeits this right if they cause the unavailability of the declarant with the intent to prevent them from testifying. See Giles v. California

Question 47

Can hearsay within hearsay ('double hearsay') be admitted?

Answer 47

Yes, as long as each hearsay statement is admitted under a hearsay exception.

Question 48

Is there a common law hearsay exception for present sense utterances?

Answer 48

No.

Question 49

What should you do if you see an answer with 'res gestae' in it?

Answer 49

Don’t pick it. Res gestae is a common law concept that is now covered under the FRE rules for: • Present sense impressions • Excited utterances; • Dying declarations; • Statements of mental, emotional, and physical conditions; and • Statements made for purposes of medical treatment or diagnosis. It is highly unlikely to be the correct answer.