Hearsay

Question 1

What is the “public records” exception to hearsay?

Answer 1

Allows as ADMISSIBLE any public record of a public office or agency setting forth:
1) the activities of the office/agency (e.g. payroll records); OR
2) matters observed p/t a duty imposed by law; OR
3) findings of fact or opinion resulting from an investigation authorized by law (even if info come from an outsider)
EXCEPTION: the public record exception does NOT include police reports prepared for prosecutorial purposes against a CRIMINAL ∆

Question 2

What are 2 categoriesout-of-court statements asserted for their truth that are STILL admissible as “nonhearsay”?

Answer 2

1) Certain pior statements of trial witness:
- Witness’s prior stmt of ID of a person after seeing him
- Witness’s prior inconsistent stmt if (i) oral; (ii) under oath; AND (iii) made during formal testimonial hearing» serves impeachment AND as substantive evidence
- Witness’s prior consistent stmt if being used to rebut a charge of recent fabrication or improper motive&raquo_space; serves rehabilitation AND as substantive evidence
2) Party admissions aka Statement of Opposing Party Any stmt (personal knowledge by declarant is NOT necessary) made by the opposing party is admissible if it is offered against the opposing party

Question 3

What is the “declaration of intent” exception to hearsay?

Answer 3

Statement of intent by declarant to do something (i) in the future; OR(ii) w/another person.

Question 4

What are the key Exceptions from the hearsay rule that are unaffected by witness availability?

Answer 4

1) Excited utterance
2) Present sense impression
3) Then existing mental, emotional, or physical condition (includes declaration of intent and mental feeling)
4) Statement made for medical diagnosis or treatment
5) Past recollection recorded
6) Public records of vital statistics
7) Business records of a regular activity
8) Absence of business records for a regular activity
9) Public records and reports
10) religious records of Personal or family history
11) marriage/baptism/etc certificates
12) family records
13) property documents
14) property statements
15) ancient documents
16) market reports and commercial publications
17) learned treatises and periodicals
18) family history or personal reputation
19) reputation concerning boundaries or general history
20) judgment of a previous conviction

Question 5

How can a party impeach a hearsay declarant?

Answer 5

ANY impeachment method may be used to attack the credibility of a hearsay declarant whose stmt was admitted into evidence

Question 6

What is the “former testimony” exception to hearsay?

Answer 6

Former testimony of a now-unavailablewitness, from prior proceeding/dep is ADMISSIBLE against a party who:
1) Was a party in the former action (predecessor in interest)
2) Had opportunity andmotive to cross the witness; AND
3) the former action involved the same subject matter; AND
4 ) former testimony was given under oath;
NOTE: Don’t confuse w/prior inconsistent statementunder oath in formal proceeding = nonhearsay exclusion.

Question 7

What is the “present state of mind” exception to hearsay?

Answer 7

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions, or INTENT (i.e. unique knowledge) NOTE: Can overlap w/ non-hearsay exclusion forcircumstantial evidence of declarant’s state of mind (e.g. insane)

Question 8

What are the grounds for declarant UNAVAILABILITY as required by certain hearsay exceptions?

Answer 8

1) exempted by Privilege
2) Absence from the jurisdiction: (i) can’t find declarant w/ due diligence; OR (ii) declarant is beyond ct’s subpoena pwr
3) Illness or death
4) Lack of memory
5) Declarant’srefusal to testify (even if they’d be in contempt)

Question 9

What is the “medical/diagnoisis” exception to hearsay?

Answer 9

Statement is admissible IF Made:
1) To medical personnel (e.g. doc, nurse, EMT, psychologist);
2) Concerning past/present symptoms OR GENERAL cause of condition; AND
3) For the purpose of diagnosis/treatment
NOTE: this exception DOES NOT include stmts in which the declarant IDENTIFIES a tortfeasor or DESCRIBES the nature of alleged liability (i.e. it’s not relevant to treatment) UNLESS it’s an ID of an abuser in a domestic/child context

Question 10

What is the “present sense impression” exception to hearsay?

Answer 10

Virtually contemporaneous stmt made WHILE event is occurring OR immediately thereafter (descriptive but not necessarily emotional)

Question 11

When is a “statement” subject to the hearsay exclusion rule?

Answer 11

STEP 1: Is the stmt offered to prove the matter asserted? [No = (i) legally operative words; (ii) stmts offered to show effect on hearer/reader; (iii) stmts offered to show declarant’s state of mind] YES: STEP 2 NO: NOT HEARSAY, so not subject to hearsay exclusion rule
STEP 2: Is the stmt a nonhearsay exclusion? [Exclusion = (i) prior inconsistent stmt given under oath; (ii) prior consistent stmt used to rebut a charge that witness is lying/has improper motive; (iii) stmt of ID of a person; (iv) party admission] YES: NONHEARSAY, so not subject to hearsay exclusion NO: STEP 3
STEP 3: Does a hearsay exception apply? [(i) excited utterance; (ii) present sense impression; (iii) present state of mind; (iv) declaration of intent; (v) physical condition; (vi) stmt for medical treatment; (vii) business records; (viii) public records; (ix) former testimony; (x) stmt against interest; (xi) dying declaration (xii) forfeiture] YES: ADMISSIBLE, provided it’s not excluded under any other rules (e.g. best evidence, relevancy, etc) NO: INADMISSIBLE, stmt IS excluded by hearsay rule

Question 12

What is the “dying declaration” exception to hearsay?

Distinguish FRE from traditional rule.

Answer 12

Statement by a now-UNAVAILABLE declarant is admissible in ALL civil cases OR homicide (criminal) cases IF:

1) the declarant is under belief of impending & certain death; AND
2) stmt is concerning cause or circumstances of declarant’s death (unsupported opinion or speculation does NOT qualify)
- Under the FRE, the person doesn’t have to actually die, just be unavailable. Under the traditional rule, they had to die and this was only valid in homicide cases.

Question 13

What is the “excited utterance” exception to hearsay?

Answer 13

1) a statement Concerning startling event;
2) While declarant is still under stress of excitement it caused.
Factors to consider… the nature of the event the passage of time (no bright line but >1hr is less likely to be valid)
NOTE: in the fact pattern look for: (i) exclamatory language; (ii) excitement-oriented verbs; AND (iii) EXCLAMATION PTS!!!

Question 14

What is the “present physical condition” exception to hearsay?

Answer 14

• Statement made for any reason aboutdeclarant’s PRESENT physical condition
• Statement about PAST OR PRESENT physical condition for the purposes of obtaining medical diagnosis or treatment

Question 15

What is hearsay?

Answer 15

An out of ct stmt of a person (oral or written); offered to prove the truth of the matter asserted (in the stmt)
RULE: Hearsay stmts are INADMISSIBLE UNLESS an exception or exclusion applies
Rationale: The credibility of the declarant (out-of-ct speaker or author) at the time the stmt was made WAS NOT TESTED thru cross examination in the presence of the CURRENT factfinder

Question 16

What is the “statement against interest” exception to hearsay?

Answer 16

Declarant’s stmt is ADMISSABLE for its truth IF…

1) Declarant is unavailable
2) It is against his/her:
- Pecuniary interest (i.e. self-damaging stmt abt fin. situation);
- Property interest (i.e. something that diminishes property interest);
- Penal interest (self-damaging stmt abt penal interest)
3) Must be against interest when made
4) Can be made by ANY declarant (not just party) NOTE: In criminal cases statements by declarant against his penal interest and which are exculpatory for Δ, must be corroborated

Question 17

What is the 6th Am effect on admissibility of hearsay evidence in a criminal case (Confrontation Clause)?

Answer 17

In the context of hearsay, the prosecution may NOT use a hearsay stmt against the criminal ∆ even if falls w/in a hearsay exception IF:

1) the stmt is TESTIMONIAL;
2) the declarant is UNAVAILABLE; AND
3) the ∆ has no opportunity for CROSS EXAMINATION (either before or at trial) “Forfeiture exception”: Any type of hearsay stmt IS ADMISSIBLE against a ∆ whose WRONGDOING made the witness unavailable, IF the ct finds (i) by a preponderance of the evidence; (ii) that ∆’s conduct was SPECIFICALLY designed to prevent the witness from testifying

Question 18

What is the rule ofdouble hearsay?

Answer 18

If a hearsay stmt is included WITHIN another hearsay stmt, the evidence is inadmissible UNLESS each stmt falls w/in a hearsay exception E.g. “A told me what B said”; to be admitted, A’s stmt may be an excited utterance in response to B’s excited utterance

Question 19

What are the “business records” exception to hearsay?

Answer 19

Allows as ADMISSIBLE any business record of ANY type of business (public/private) IF:
1) Record made in the regular course of business
2) If business regularly keeps such records
3) The record is made at or about the time of the event
4) Consists of: info observed by an employee of the business (personal knowledge); OR info personally observed by the witness; AND
5) the record can be authenticated
NOTE: Be careful about double hearsay here.
Proving business records foundation…
1) Call sponsoring witness to testify to above elements (witness need not be author of report); OR
2) Written certification under oath attesting to above elements (w/ advance notice to opposing party)

Question 20

What are 3 categories out of court stmts that are “not hearsay”?

Answer 20

Not hearsay= An out-of-court statement which is NOT offered for its truth (so we don’t care abt credibility of declarant)

1) Legally operative words → legal rights/obligations attach SIMPLY bc words were spoken Contract formation/repudiation, making a gift, bribe, perjury, misrepresentation, defamation, permission E.g. “I heard Trump say to Gates, ‘I accept your offer’”
2) To show effect on listener/reader of the stmt Purpose of stmt is to put listener/reader on notice of something E.g. “I heard the supermarket clerk say that the floor was wet” (We don’t care abt whether the floor is wet, BUT RATHER that speaker was on notice)
3) Circumstantial evidence of declarant’s state of mind E.g. “Two days before the killing, Homer said, ‘I am Elvis Presley.’” (stmt is offered to show the declarant is insane, NOT THAT he’s actually Elvis)

Question 21

What are the exceptions to hearsay that require an unavailable declarant?

Answer 21

1) Former testimony
2) Statement against interest
3) Dying declaration
4) Statement of personal or family history.
5) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules) AKA a hearsay statement can be offered against a party if he is the reason the witness is unavailable

Question 22

Discuss the “opposing party admission” exception to hearsay

Answer 22

Any stmt (personal knowledge by declarant is NOT necessary) made by the opposing party is NOT hearsay. It is admissible if it is offered against the opposing party

• Judicial and extrajudicial admissions
• Adoptive admission: if a party expressly or impliedly adopts a stmt made by another person, it is AS THOUGH the party herself made the stmt
• Vicarious party admission: stmt by AGENT/EMP is admissible against principal/employer IF (i) the stmt concerns matters w/in scope of agency/employment; AND (ii) is made during the existence of the agency/employment relationship
• Co-conspirator’s stmts: a stmt of a co-conspirator is admissible against a party who was a member of the conspiracy IF the stmt was made (i) during; AND (ii) in furtherance of the conspiracy

Question 23

Discuss the “statements of personal or family history” exception to hearsay

Answer 23

Statement by a now unavailable declarant concerning births, deaths, marriages, etc, are admissible provided that:

• Declarant is a member of the family in question or intimately associated w it AND
• Statements are based on declarant’s personal knowledge

Question 24

What is the catch-all hearsay exception?

Answer 24

If a hearsay statement is not cover by a specific exception to be admitted, the FRE catch-all exception requires:

1) That the hearsay statement possess circumstantial guarantees of TRUSTWORTHINESS
2) That the statement be strictly NECESSARY
3) That NOTICE BE GIVEN to the adversary as to the nature of the statement

Question 25

When is a statement testimonial for purposes of the Confrontation Clause?

Answer 25

Testimonial:

i) grand jury testimony; (ii) stmts in response to police interrogation IF purpose of the questioning is to est/prove past events that are potentially relevant to criminal prosecution; (iii) sworn affidavits; (iv) forensic lab reports used to accuse an individ. of criminal conduct NONtestimonial:
i) police questioning enabling police assistance in meeting ongoing emergency (911 call); (ii) business records; (iii) general DNA profiling w/o ind. suspect in mind;