Hearsay

Question 0

Prior Statements EXCLUDED from Hearsay Rule

Answer 0

1. Prior Sworn Inconsistent Statement
2. Prior Consistent Statement
3. Prior Identification

declarant must testify

Question 1

Broad Categories of Hearsay EXEMPTIONS (2)

Answer 1

Declarant-Witness Prior Statements - PSInS; PCS; PI

Certain Statements Made by Opposing Party - D.A.A.V.Cc

Question 2

Requirements for Prior Statements to be EXCLUDED from Hearsay rule

Answer 2

1. Declarant must testify at trial or hearing
2. is subject to cross examination
3. Statement is
   Prior Sworn Inconsistent Statement;
   Prior Consistent Statement;
   Prior Identification

Question 3

Prior Sworn Inconsistent Statement

Answer 3

Non-Hearsay
admissible as substantive evidence. 
they were subject to penalty of perjury 
depositions and grand jury testimony
not affidavit.

Made under oath and subject to cross-examination.

Prior inconsistent statements not made under oath and subject to cross-examination are not hearsay when offered to impeach.

Question 4

Prior Consistent Statement

Answer 4

admissible substantive evidence
rebut charge of recent fabrication, improper influence,or motive.

MADE PRIOR TO THE TIME THE REASON FOR BIAS OCCURRED.

Question 5

Prior Identification

Answer 5

Statement identifies a person as someone declarant perceived earlier.

declarant (eyewitness) is presently testifying

Statements of Prior Identification are non-hearsay

Question 6

Opposing Party Statements

Are Not hearsay when offered against an opponent and is: (5)

Answer 6

1. Made by the party, agent or representative
2. manifested or adopted the statement as true
3. authorized by party on the subject (does not establish authority)
4. party’s employee in the scope of relationship while it existed.
5. made by co-conspirator in the furtherance of the conspiracy.

Question 7

Admissions that are NOT hearsay

Answer 7

Direct
Adoptive
Authorized
Vicarious
Co-Conspirator Statements

Question 8

Direct Admissions - as distinguished from statement against interest

Answer 8

Direct Admissions are exempt from hearsay rule

Statement is made by a party opponent
may be fact or opinion
PERSONAL KNOWLEDGE NOT REQUIRED -
as in SAI exception which requires personal knowledge
Party need not be available.

Question 9

Adoptive Admissions - Characteristics

Answer 9

Reasonable person would have denied the assertion.

Evidence shows the party HEARD, UNDERSTOOD, and ADOPTED

Once Miranda Rights given adoptive admissions no longer apply

Question 10

Hearsay Defined

Answer 10

Out of Court statement
Offered for
Truth of the matter Asserted

Question 11

Statement - Defined

Answer 11

oral or written assertion, or

nonverbal conduct intended as an assertion.

Question 12

Assertive Conduct - examples

Answer 12

conduct intended to communicate

Pointing to Identify or give directions
nodding the head in assent or shaking head No
Obscene gestures
Sketch of a police artist

Question 13

Non Assertive Conduct - Implications and examples

Answer 13

not intended to communicate
NOT hearsay
requires no exception for admission.

Video of Defendant showing demeanor
defendant walking with a limp showing injury or impairment
Defendant hiding evidence or fleeing scene.

Question 14

Who can make a statement?

Answer 14

Declarant must be a human.

Actions of animals or machines are not statements.

Question 15

5 Step Hearsay Analysis Approach

Answer 15

1. Isolate words
2. who is the declarant
3. is it an assertion
4. purpose for which evidence is being offered
   a. if for truth = hearsay - go to step 5
   b. if not for truth = not hearsay
   (1) to impeach
   (2) Rule 801(d)
   (3) verbal acts
   (4) State of mind
5. Apply Hearsay Exceptions

Question 16

Declarant UNAVAILABLE Exceptions - (5)

Answer 16

Former Testimony
Dying Declarations
Statement against Interest
Statements of Personal or Family History
Forfeiture by Wrongdoing -  Statement offered against a party wrongfully causing declarants unavailability.

Question 17

TOP HEARSAY EXCEPTION

Declarant IS a Party

Answer 17

Party admission

Statement offered by an opponent is admissible, even where the statement was not against the party’s interests when made. May be words letters or documents.

Question 18

TOP HEARSAY EXCEPTIONS

Where Declarant is ANYONE

Answer 18

1. Excited utterance
2. Present Sense Impression
3. Then-Existing Mental, Physical, or Emotional condition
4. Medical Treatment or Diagnosis
5. Business and Public Records

Question 19

Evidence offered for a NON hearsay purpose

Answer 19

1. Effect on listener - witness overhears statement to manager to clean up spill is admissible to show knowledge.
2. State of mind
3. Verbal Acts - words of independent legal significance
4. Condition of a person
5. Nature of a place

Question 20

Words of Independent Legal Significance

Answer 20

not Hearsay

Transactional Words
Tortious Words

Question 21

Vicarious Admission

Answer 21

NOT HEARSAY

1. Statement made during employment
2. concerns matter within scope of employment

Question 22

Authorized Admission

Answer 22

NOT HEARSAY

Statement made by party’s agent or representative

Agency can be express or implied

Question 23

Co-Conspirator Statements

Answer 23

NOT HEARSAY

1. Existence of conspiracy preliminary fact to be proven court by preponderance of the evidence
2. made by member of conspiracy
3. in furtherance of conspiracy
4. during existence of conspiracy