Hearsay

Question 1

Hearsay Definition

Answer 1

Out of court statement by a person

offered to prove the truth of the matter asserted

Question 2

Hearsay Rule

Answer 2

Hearsay is inadmissible unless an exception applies.

Question 3

Purposes BESIDES truth of the matter

Answer 3

1. Verbal Act (legally operative words)
2. To show effect on person who heard statement (prior notice or to show person’s motive, fear, etc.)
3. Circumstantial evidence of Speaker’s State of Mind

Question 4

Witness’s Prior Statements that are NOT hearsay

3 kinds

Answer 4

1. Witness’s prior statement of identification of a person
2. Witness’s prior INconsistent statement IF oral, under oath, during formal trial, hearing, proceeding, or deposition.
3. Witness’s prior CONSISTENT statement from BEFORE improper motive/influence arose IF used to rebut charge of recent fabrication/improper motive.

Question 5

Statement of a Party-Opponent (party admission)

Answer 5

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.

Question 6

Vicarious Party Admission as statement of a party-opponent

Answer 6

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.

Question 7

Co-Conspirator’s Statement as statement of party-opponent

Answer 7

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.

Question 8

Hearsay Exceptions

Answer 8

1. Forefeiture by wrongdoing
2. Former Testimony
3. Statement against Interest
4. Dying Declaration
5. Excited Utterance
6. Present Sense Impression
7. Present State of Mind
8. Declaration of Intent
9. Present Physical Condition
10. Statement for Purpose of Medical Treatment/diagnosis
11. Business Records
12. Public Records
13. Past Recollection Recorded
14. Learned Treatises

Question 9

Hearsay Exceptions that Require Declarant to be UNAVAILABLE to apply (4)

Answer 9

1. Forefeiture By Wrongdoing
2. Former Testimony
3. Statement Against Interest
4. Dying Declaration

Question 10

Grounds for Unavailability

Answer 10

1. Privilege
2. unable to be located with due diligence
3. witness beyond the court’s subpoena power
4. illness or death
5. lack of memory
6. stubborn refusal to testify

Question 11

6th Amendment Confrontation Clause and Hearsay

Answer 11

The prosecution may not use hearsay stmt against the criminal defendant (even if it falls w/in hrsy exception) if

1. the statement is TESTIMONIAL
2. the declarant is UNAVAILABLE and
3. the defendant has had NO OPPORTUNITY to cross-examine

Question 12

Testimonial

Answer 12

It IS Testimonial if

1. grand jury testimony
2. response to police questioning if the primary purpose is to establish or prove past events that are potentially relevant to later criminal prosecution.
3. Sworn Affidavits
4. 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)

2. business records
3. Forensic Lab reports IF no particular person is suspected at the time of analysis.

Question 13

Forensic Evidence - Testimonial?

Answer 13

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.

Question 14

Forfeiture by Wrongdoing

Hrsy Exception

Answer 14

Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds

1. by a POTE
2. that the D’s conduct was designed to prevent the witness from testifying.

Forfeits Hrsy objection AND confrontation clause objection.

Question 15

Former Testimony

Answer 15

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.

Question 16

Statement Against Interest

hrsy exception

Answer 16

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)

Question 17

Dying Declaration

Hrsy Exception

Answer 17

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.

Question 18

Excited Utterance

Hrsy Exception

Answer 18

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.)

Question 19

Present Sense Impression

Hrsy Exception

Answer 19

Description of an event made while the event is occurring or immediately thereafter.

Question 20

Present State of Mind or Declaration of Intent

Hrsy Exception

Answer 20

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.”

Question 21

Present Physical Condition

Hrsy Exception

Answer 21

Statement made TO ANYONE about declarant’s CURRENT physical condition.

Question 22

Statement Made for the Purpose of Medical Treatment or Diagnosis
Hrsy Exception

Answer 22

A statement made TO ANYONE for the purpose of obtaining medical treatment or diagnosis IF it concerns declarant’s

1. present symptoms
2. past symptoms OR
3. 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.

Question 23

Business Records

Hrsy Exception

Answer 23

Elements

1. records of a business of any type
2. made in the regular course of business
3. of a type the business regularly keeps (routine)
4. made contemporaneously to the recorded event
5. Contents consist of (a) information observed by employees OR (b) a statement that falls w/in another hrsy exception.

Question 24

Business Duty Rule

Answer 24

the business records exception only applies to statements of one who has a business duty to observe and report accurately.

Question 25

Business Records Required Foundation for Authentication

Answer 25

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)

Question 26

Public Records

Answer 26

Records of a public office or agency setting forth

1. the activities of the office or agency, or
2. matters observed pursuant to a duty imposed by law (weather bureau records temperature), or
3. 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.

Question 27

Impeachment of Hearsay Declarants

Answer 27

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.