Hearsay Flashcards
Hearsay Definition
Out of court statement by a person
offered to prove the truth of the matter asserted
Hearsay Rule
Hearsay is inadmissible unless an exception applies.
Purposes BESIDES truth of the matter
- Verbal Act (legally operative words)
- To show effect on person who heard statement (prior notice or to show person’s motive, fear, etc.)
- Circumstantial evidence of Speaker’s State of Mind
Witness’s Prior Statements that are NOT hearsay
3 kinds
- Witness’s prior statement of identification of a person
- Witness’s prior INconsistent statement IF oral, under oath, during formal trial, hearing, proceeding, or deposition.
- Witness’s prior CONSISTENT statement from BEFORE improper motive/influence arose IF used to rebut charge of recent fabrication/improper motive.
Statement of a Party-Opponent (party admission)
Any statement made by a party, offered AGAINST that party, is NOT HEARSAY, and is therefore admissible unless otherwise precluded.
Adoption - if party expressly or impliedly adopts stmt of another, still not hearsay and admissible. ADOPTION BY SILENCE if 1) hears and understands statement and 2) remains silent under circumstances in which a reasonable person would protest if the statement were false.
Vicarious Party Admission as statement of a party-opponent
Statement by an agent/employee is admissible against principal if stmt 1) concerns a matter within scope of agency/employment and 2) is made during the existence of the agency/employment relationship.
Co-Conspirator’s Statement as statement of party-opponent
Statement of a co-conspirator is admissible against a party who was a member of the conspiracy if made 1) during and 2) in furtherance of the conspiracy.
Hearsay Exceptions
- Forefeiture by wrongdoing
- Former Testimony
- Statement against Interest
- Dying Declaration
- Excited Utterance
- Present Sense Impression
- Present State of Mind
- Declaration of Intent
- Present Physical Condition
- Statement for Purpose of Medical Treatment/diagnosis
- Business Records
- Public Records
- Past Recollection Recorded
- Learned Treatises
Hearsay Exceptions that Require Declarant to be UNAVAILABLE to apply (4)
- Forefeiture By Wrongdoing
- Former Testimony
- Statement Against Interest
- Dying Declaration
Grounds for Unavailability
- Privilege
- unable to be located with due diligence
- witness beyond the court’s subpoena power
- illness or death
- lack of memory
- stubborn refusal to testify
6th Amendment Confrontation Clause and Hearsay
The prosecution may not use hearsay stmt against the criminal defendant (even if it falls w/in hrsy exception) if
- the statement is TESTIMONIAL
- the declarant is UNAVAILABLE and
- the defendant has had NO OPPORTUNITY to cross-examine
Testimonial
It IS Testimonial if
- grand jury testimony
- response to police questioning if the primary purpose is to establish or prove past events that are potentially relevant to later criminal prosecution.
- Sworn Affidavits
- Forensic lab report IF primary purpose is to accuse a targeted individual
NOT testimonial if
1. response to police questioning if the primary purpose is to enable the police to meet an ONGOING EMERGENCY (911 call; crime ended but perpretator armed and at large)
- business records
- Forensic Lab reports IF no particular person is suspected at the time of analysis.
Forensic Evidence - Testimonial?
Yes if for primary purpose of accusing/convicting a targeted individual/suspect.
No if no particular person is suspected at time of analysis.
BUT no confrontation problem if prosecution calls an expert who performed an independent analysis of the data who only generally refers to the report as PART of basis for opinion, and doesn’t read report into evidence.
Forfeiture by Wrongdoing
Hrsy Exception
Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds
- by a POTE
- that the D’s conduct was designed to prevent the witness from testifying.
Forfeits Hrsy objection AND confrontation clause objection.
Former Testimony
1) Former testimony
2) of a now unavailable witness
3) if given at a former formal judicial proceeding (including deposition)
4) IS admissible against a party who on the prior occasion had an opportunity AND MOTIVE to cross examine or develop the testimony of the witness.
Must be same issue in both proceedings
If former case was civil and now criminal, probably NOT similar enough motive for D.
Statement Against Interest
hrsy exception
ANY unavailable declarant’s statement against his pecuniary, proprietary, or penal interest IS admissible.
must be against interest when made; speaker must KNOW its against interest
In criminal cases, statement against penal interest must be supported by corroboration (circumstances showing trustworthiness of statement)
Dying Declaration
Hrsy Exception
Admissible if it is:
1) Statement made under a belief of IMPENDING AND CERTAIN DEATH
2) by a NOW UNAVAILABLE declarant
3) Concerning the CAUSE or surrounding circumstances of declarant’s death.
4) if it’s a criminal HOMICIDE or any civil case.
Excited Utterance
Hrsy Exception
Statement concerning a startling event, made while declarant is still under stress of excitement caused by the event.
Consider: 1) nature of event, 2) passage of time, 3) way it’s spoken (exclamatory phrase, etc.)
Present Sense Impression
Hrsy Exception
Description of an event made while the event is occurring or immediately thereafter.
Present State of Mind or Declaration of Intent
Hrsy Exception
Contemporaneous statement concerning declarants present state of mind, feelings, emotions and statements of Declarant’s intent to do something in the future (including conduct with another person).
e.g. “I hate Mark” “I’m planning to travel with Hillmon.” “I am afraid.” “I’m going to kill him.”
Present Physical Condition
Hrsy Exception
Statement made TO ANYONE about declarant’s CURRENT physical condition.
Statement Made for the Purpose of Medical Treatment or Diagnosis
Hrsy Exception
A statement made TO ANYONE for the purpose of obtaining medical treatment or diagnosis IF it concerns declarant’s
- present symptoms
- past symptoms OR
- general cause of condition, but NOT statements dealing with liability or identity of tortfeasor/D UNLESS the identity of abuser in a domestic or child abuse case (relevant to treatment!)
only statements by patient, NOT statements made by doctor to patient.
Business Records
Hrsy Exception
Elements
- records of a business of any type
- made in the regular course of business
- of a type the business regularly keeps (routine)
- made contemporaneously to the recorded event
- Contents consist of (a) information observed by employees OR (b) a statement that falls w/in another hrsy exception.
Business Duty Rule
the business records exception only applies to statements of one who has a business duty to observe and report accurately.
Business Records Required Foundation for Authentication
call sponsoring witness to testify to the five elements of hearsay exception - witness need not be author, can be records custodian or other knowledgable person
OR
written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party)
Public Records
Records of a public office or agency setting forth
- the activities of the office or agency, or
- matters observed pursuant to a duty imposed by law (weather bureau records temperature), or
- findings of fact or opinion resulting from an investigation authorized by law
Police Reports prepared for prosecutorial purposes are NOT ADMISSIBLE against a criminal D under either Public Records or Business Records exception.
Impeachment of Hearsay Declarants
Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence.
If statement is a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived if the declarant does not testify.
