Hearsay

Question 1

What is hearsay?

Answer 1

Hearsay is an out of court statement of a person offered to prove the truth of the matter asserted.

Question 2

What are the categories of non-hearsay? What are the NY distinctions?

Answer 2

1. Verbal Act (Legally Operative Words): a situation where the substantive law attaches rights and obligations to certain words simply because they were spoken.
2. To Show Effect on Person Who Heard or Read the Statement: If a person hears someone else make certain statements, this may be relevant to put the listener on notice of something, or to create fear, or to give the listener a motive or probable cause to do something without regard to whether the statement is true.
3. Circumstantial Evidence of Speaker’s State of Mind
4. Prior Statements of Trial Witness:
   a. Witness’ prior statement of identification of a person (in New York, called a hearsay exception) OR
   b. *Witness’ prior inconsistent statement *if oral, under oath and made during formal testimonial hearing (in New York, admissible only to impeach) OR
   c. Witness’ prior consistent statement if being used now to rebut charge of recent fabrication or improper motive (in **New York, **admissible only to rehabilitate credibility).
5. Party Admissions (statement of an opposing party): any statement made by an opposing party is admissible if it is offered against the opposing party. In New York, it is still called a party admission and is considered a hearsay exception, rather than an exclusion.

Question 3

What are adoptive admissions, vicarious party admissions, and co-conspirator’s statement? What are the NY distinctions?

Answer 3

Adoptive admission: if a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the statement. Adoption by silence occurs when a party who hears another person’s statement remains silent under circumstances in which a reasonable person would protest if the statement were false.

Vicarious party admission: Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship.

New York: the statement of an agent/employee is admissible as a vicarious party admission only if the principal/employer gave the agent/employee authority to speak about the matter.

Co-conspirator’s Statement: The statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during and (2) in furtherance of the conspiracy.

Question 4

What is the scope of a criminal defendant’s right of confrontation?

Answer 4

In the context of hearsay, the prosecution may not use a hearsay statement against the criminal defendant (even if it falls within a hearsay exception) if:

1. the statement is testimonial;
2. the declarant is unavailable; and
3. the defendant has had no opportunity to cross-examine.

Question 5

What is considered testimonial evidence?

Answer 5

Categories we know:

1. Grand jury testimony is testimonial.
2. Statements in response to police interrogation:
   a. *Testimonial *if the primary purpose of the question is to establish or prove past event potentially relevant to a criminal prosecution.
   b. Non-testimonial if the primary purpose of the question is to enable police assistance to meet an ongoing emergency.
3. Documents:
   a. Business records are non-testimonial.
   b. **Sworn affidavits **are testimonial.
   c. **A forensic laboratory report **is testimonial if its primary purpose is to accuse a targeted individual of criminal conduct. BUT a DNA report is not testimonial if it analyzes a sample of bodily fluid collected from a crime scene for the purpose of developing a DNA profile if no particular person is suspected at the time of the analysis.

There is no confrontation violation when a prosecutor calls a testifying expert who performed an independent analysis of the data and refers to the report as a partial basis of her opinion, without reading the report to the jury or introducing it as evidence.

Question 6

Which hearsay exceptions is unavailability required? Which exceptions is it immaterial?

Answer 6

Unavailability Required:

Former testimony

Statement against interest

Dying Declaration

Unavailability Immaterial:

Present State of Mind

Excited Utterances

Present Sense Impressions

Present Physical Condition

Past Bodily Conditions/Statement made for the purpose of diagnosis or treatment

Business Records

Past Recorded Recollection

Ancient Documents

Learned Treatises

Public Records

Question 7

What are the grounds for unavailability of a witness? What are the NY distinctions?

Answer 7

1. Privilege
2. Absence from jurisdiction (cannot be found with due diligence OR beyond court’s subpoena power)
3. Illness/Death
4. Lack of memory
5. Stubborn refusal to testify

New York has two additional grounds of “unavailability” for the former testimony hearsay exception in civil cases only:

1. Declarant is located 100 miles or more from the courthouse OR
2. Declarant is a physician.

Question 8

What is the “forfeiture” hearsay exception?

Answer 8

“Forfeiture Hearsay Exception” (Declarant Unavailable Due to Defendant’s Wrongdoing): Any type of hearsay statement is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds:

1. by a preponderance of the evidence
2. that defendant’s conduct was specifically designed to prevent the witness from testifying.

New York: must be shown by clear and convincing evidence.

Question 9

What is the former testimony hearsay exception?

Answer 9

The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition 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. Issue in both proceedings must be essentially the same.

Question 10

What is the statement against interest hearsay exception? How is this different from party admission?

Answer 10

An unavailable declarant’s statement against his or her:

1. pecuniary interest;
2. proprietary interest;
3. statement against penal interest.

Distinction from party admission: must be against interest when made, any person can make a statement against interest, personal knowledge is required, an the declarant must be unavailable.

Question 11

What is the dying declaration hearsay exception? What are the NY distinctions?

Answer 11

A dying declaration is a statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.

In criminal cases, it can be used in a homicide case only.

In civil cases, it can be used in any type of case.

New York: Can only use it in a criminal homicide case - death is the only relevant form of unavailability, and CANNOT be used in a civil case.

Question 12

What is the excited utterance hearsay exception?

Answer 12

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.

Question 13

What is the present sense impression hearsay exception? What are the NY distinctions?

Answer 13

A description of an event made while the event is occuring or immediately thereafter.

New York: There must be corroborating evidence of the happening of the event described by the declarant.

Question 14

What is the present state of mind hearsay exception?

Answer 14

A contemporaneous statement concerning declarant’s present state of mind, feelings, emotions.

Question 15

What is the declaration of intent hearsay exception? What is the NY distinction?

Answer 15

A statement of declarant’s intent to do something in the fture including the intent to engage in conduct with another person.

New York: If the statement of future intent is offered to prove the joint participation of another person, New York requires:

1. corroborating evidence of a relationship between the declarant and the other person, AND
2. that the declarant is unavailable.

Question 16

What is the present physical condition hearsay exception? What is the NY distinction?

Answer 16

A statement made to anyone about declarant’s current physical condition.

New York: If a statement of a present physical condition is made to a layperson, rather than a medical professional, the declarant must be unavailable.

Question 17

What is the past bodily condition hearsay exception? What are the NY distinctions?

Answer 17

It is a statement made to anyone (usually to medical personnel) for the purpose of obtaining medical treatment or diagnosis (including diagnosis for expert testimony) if it concerns the declarant’s:

a. present symptoms OR
b. past symptoms OR
c. general cause of the condition, but not including statements describing the details of liability or the identity of a tortfeasor, unless it is the identity of the abuser in a domestic abuse or child abuse case.

Note: This exception does not include oral statements made by a physician to the patient.

New York: This exception does not apply to statements made to a physician solely for the purpose of helping the physician to develop an opinion for expert testimony at trial.

Question 18

What is the business records hearsay exception?

Answer 18

Elements:

1. Records of a business of any type;
2. Made in the regular course of business (the information recorded is germane to the business);
3. The business routinely keeps such records;
4. Made at or about the time of the event recorded;
5. Contents consiste of -
   a. information observed by employees of the business OR
   b. a statement that falls within an independent hearsay exception.

Question 19

How is the foundation for a business record laid? What are the NY distinctions?

Answer 19

1. Call sponsoring witness to testify to the five elements of business records hearsay exception; witness need not be author of report - can be records custodian or any other knowledgeable person within the business, OR
2. Written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party).

New York: Certification method is permitted only in three situations:

1. In civil cases, the business records are those of a non party that has produced its business records for inspection as part of pretrial discovery;
2. In any type of case, the business records are those of a hospital, OR
3. In any type of case, the business records are those of state or local government.

Question 20

What is the public records hearsay exception?

Answer 20

Records of a public office or agency setting forth:

1. the activities of the office or agency OR
2. matter observed pursuant to a duty imposed by law OR
3. findings of fact or opinion resulting from an investigation authorized by law.

Exclusion: police reports prepared for prosecutorial purposes are not admissible against the defendant in a criminal case.

Question 21

What is the past recollection recorded hearsay exception? What are the NY distinctions?

Answer 21

It allows a witness to read to the jury a past recorded recollection of their testimony, as long as the following foundation is established:

1. showing writing to witness fails to jog memory,
2. witness had personal knowledge at former time,
3. writing was either made by wtiness, or *adopted * by witness,
4. making or adoption occured while the event was still fresh in the witness’ mind,
5. witness can vouch for accuracy of writing when made or adopted.

New York: If the 5 factor foundation is established, the writing may be shown to the jury. Under the FRE, proponent may only read it to the jury.

Question 22

What is the learned treatise hearsay exception? What are the NY distinctions?

Answer 22

Federal:

1. On direct examination of party’s own expert: relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence if established as reliable authority.
2. On cross examination of opponent’s expert: Relevant portions of treatise, etc. may be read into evidence to impeach and contradict opponent’s expert. Also, comes in as substantive evidence.

Note: The treatise may be used only wth the testimony of an expert - it is not admissible by itself. It cannot be introduced as an exhibit - only relevant passages can be read to the jury.

New York:

1. On direct examination of party’s own expert: There is no hearsay exception in NY for the contents of a learned treatise. The treatise may only be used as to show the general basis of the expert’s testimony, not as substantive evidence.
2. On cross examination of opponent’s expert: The learned treatise may only be used to impeach the expert’s credibility (not as substantive evidence), AND only if the expert relied on the treatise in developing her own opinion OR acknowledged on cross that it is a reliable authority.