** Hearsay ** Flashcards
Hearsay:
Definition
General Rule
= an out-of-court statement presented in court to prove the truth of the matter asserted
N/a to:
- machines (ex: clock)
- animals (ex: K-9 unit drug team)
GEneral rule:
- Hearsay is inadmissible unless an exclusion applies
- (b/c opponent had no opp’y to cross ex. when statement made)
Hearsay:
3 common non-hearsay purposes
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 b/c words were spoken
- Includes: (where subjective understanding irrelevant)
- Contract formation/repudiation, E.g. “I heard Trump say to Gates, ‘I accept your offer’”
- patent
- making a gift,
- bribe,
- perjury,
- misrepresentation,
- defamation,
- permission
2) To show effect on listener/reader of the stmt
- ex: Prior notice (of dangerous condition)
- E.g. “I heard the supermarket clerk say that the floor was wet” (purpose: speaker was on notice)
3) Circumstantial evidence of declarant’s state of mind
- Insanity,
- E.g. “Two days before the killing, Homer said, ‘I am Elvis Presley.’”
- lack of knowledge (implicit meaning)
Hearsay:
Prior TEstimony
& exceptions
What are 3 categories out-of-court statements asserted for their truth that are STILL admissible as “nonhearsay”? NOTE: NY Distinction
General rule: out-of-ct statements canNOT be repeated by W on the stand
3 exclusion/exceptions:
- 1) Prior identification of a person
- effect: substantive evidence
- 2) Prior inconconsistent statement IF:
- oral testimony under oath
- effect:
- NY: impeach only
- FRE: impeach & substantive evidence
- 3) Prior consistent statement
- IF charged w/recent fabrication
- effect:
- NY: impeach only
- FRE: impeach & substantive evidence
- 3) Statements by opposing party
- is admissible if it is o_ffered against the opposing party_
What are the 12 key EXCEPTIONS to the hearsay rule?
- 1) Excited utterance
- 2) Present sense impression
- 3) Present state of mind
- 4) Declaration of intent
- 5) Present physical condition
- 6) Stmt for the purpose of obtaining medical treatment/diagnosis
- 7) Business records
- 8) Public records
- 9) Learned treatise
- 10) Past recorded recollection
Requiring UNAVAILABITY of declarant…
- 11) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules)
- 12) Former testimony
- 13) Statement against interest
- 14) Dying declaration
Confrontation Clause
6th Amend: Criminal D’s have right to “confront witnesses” who testify against them
Applies where: prior statemnt offered against Criminal D
-
testimonial evidence
- (i) grand jury/former proceeding (regulatory/judicial)
- (ii) sworn affidavits
- (iii) police interrogation IF primary prupose of questioning was to prove past events potentially relevant to criminal prosecution
- (primary purpose is to respond to ongoing emergency –> not)
- (iv) forensiv lab report IF primary purpose is to accuse a targeted suspect of criminal conduct
- not if used by expert as basis for opinon (jury to evaluate)
- & declarant is unavailable for cross-examination
- no opportunity to cross-examine when statement made
(applies if:
- affidavit of forensic evidence & lab tech is unavailable)
What are the grounds for UNAVAILABILITY as required by certain hearsay exceptions? NOTE: NY Distinction
FRE:
- 1) Privilege
- 2) Absence from the jx:
- (i) can’t find declarant w/ due diligence;
- OR (ii) declarant is beyond ct’s subpoena pwr
- 3) Illness/death
- 4) Lack of memory
- 5) Declarant’s refusal to testify (even if they’d be in contempt)
NY has two ADDITIONAL grounds for unavailability (for CIVIL CASES ONLY)…
- FRE’s 1-5
- 6) Declarant is > 100 miles from ct house
- 7) Declarant is a physician
- (public policy favors that the dr. continues their work rather than testify AGAIN)
Hearay Exception:
Foreiture by Wrongdoing
Hearsay statemnt admissible agianst D whose wrongdoing made the W unavailable, if:
- (i) D’s wrongdoing made the W unavailable
- (ii) D’s conduct was specifically designed to prevent W from testifying
Burden of Proof:
- FRE: Preponderance of evidence
- NY: Clear & convincing evidence
Hearsay:
Former testimony exception
Former testimony is ADMISSABLE against a party who had:
- i) declarant now unavailable
- ii) Opportunity and motive to c_ross the witness_;
- iii) The issue was essentially the same
NOTE: Don’t confuse w/prior inconsistent statement under oath in formal proceeding = nonhearsay exclusion.
Hearsay exception:
Statement against interest
(3 elements for civil,
4 elements for criminal)
Former out-of-court statements admissible IF:
- (i) declarant unavailable
- (ii) when made, statement was against:
- a) pecuniary interest
- (against financial interest)
- b) proprietary interest
- (against property ownership)
- ex: gave gift to x
- OR c) penal interest
- (expose to criminal liability)
- a) pecuniary interest
- (iii) declarant knew was agianst interest
- (iv) IF Criminal trial, corroborating evidence of statement’s truth
\Hearsay Exception:
Dying Declaration
What type of case?
- FRE: Homicide OR civil (any type)
- NY: Homicide only
Statement by a now-UNAVAILABLE declarant is admissible IF made:
- (i) Declarant is unavailable
- (ii) Declarnt under belief of impending & certain death
- (iii) statement concerns cause/circumstances of impending death
NOTE*** Exempt from COnfrontation Clause, even if testimonial
What is the “excited utterance” exception to hearsay?
(Declarant need not be unavailable)
Excited Utterance is a
- 1) stmt concerning startling event;
- 2)made while declarant is still under stress of excitement it caused.
- Factors to consider…
- (visual clues in q- !’s, etc)
- i) the nature of the event
- ii) the passage of time
- (no bright line but >1hr is less likely to be valid)
Hearsay Exception:
“present sense impression”
NOTE: NY Distinction
(Declarant need not be unavailable)
Statement:
- i) describing event
- i) WHILE event is occurring OR immediately thereafter (descriptive but not necessarily emotional)
NY:
- iii) corroborating evidence of the contents of the present sense impression
Hearsay exception:
Present state of mind
(delcarant need not be unavailable)
Statement:
- i) Statement regarding declarant’s present
- state of mind
- feelings
- emotions
NOTE: Can overlap w/ non-hearsay exclusion for circumstantial evidence of declarant’s state of mind (e.g. insane)
Hearsay exception:
Present PHysical Condition
NOTE: NY Distinction
(Declarant need not be unavailable UNLESS NY + to layperson)
Statement:
- made to ANYONE
- about declarant’s current physical condition
- (+ NY: if to lay person, declarant unavailable)
Hearsay Exception:
Statement for Medical Treatment/Diagnosis
(NY Distinction)
Statement is admissible IF Made:
- 1) To ANYONE
- need not be (e.g. doc, nurse, EMT, psychologist);
- NY: NOT if made to expert for purpose of trial only
- 2) Concerning past/present symptoms or general cause of condition;
- +3) For the purpose of diagnosis/treatment
Identification of tortfeasor?
- NOT UNLESS ID of an abuser in a domestic/child context
Hearsay exception:
Declaration of Intent
NOTE: NY Distinction
(Declarant need not be unavailbale UNLESS NY + joint participation)
Statement of
- (i) intent by declarant to do something
- (ii) in the future, including w/another person.
NY: if to prove JOINT particpation of another person, must show:
- (1) Declarant unavailable
- (2) corroboration of existent relationship between declarant and other person
Hearsay exception:
Business Records
MUST lay foundation:
- 2 ways:
- W testifies as to 5 elements (has personal knowledge/knowledge of the business & records)
- OR 2. Written certification under oath & advance notice
- NY: must be particular type case:
- A. Business = hospital
- B. Business = state OR local govt
- OR C. civil case –> business records are of NONPARTY + produced for inspection in discovery
- NY: must be particular type case:
Statements in:
- i) business of any type
- *hospital
- *doctor
- * police (not against crim D)
- ii) in regular course of business
- (not prep for trial)
- iii) business routinely keeps such records
- iv) made at/about time event occurred
- v) contents are either:
- A) info observed by employees
- (NOT outsider; yes –> public records)
- OR B) statement that falls w/in independent hearsay exception
- A) info observed by employees
Hearsay Exception:
Public Records
NOTE: NY Distinction
Allows as ADMISSIABLE any
- i) public record of a public office or agency
- ii) setting forth:
- 1) the a_ctivities 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 fron an outsider)
EXCEPTION: the public record exception
- does NOT include police reports prepared for prosecutorial purposes against a CRIMINAL D
NY:
- this doctrine is NOT well developed in NY; usually use business records
-
conclusions/opinions contained in a gov’t investigatory report are admissable ONLY IF
- (i) the report sets forth adequate facts;
- AND (ii) the person giving the opinion is qualified
How can a party impeach a hearsay declarant?
ANY impeachment method may be used to attack the credibility of a hearsay declarant whose stmt was admitted into evidence
When is a “statement” subject to the hearsay exclusion rule?
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) present 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
What is the rule of double hearsay?
If a hearsay stmt is included WITHIN another hearsay stmt, the evidence is inadmissable 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
Hearsay exception: Ancient documents
- Documents > __ years
- Fed: 20 years
- NY: 30 years
- that is found in place would naturally find it
Hearsay exception:
Disposition of property document
Docs that dispose of property = admissible as exception to hearsay exclusion
Hearsay exception:
Past Recorded Recollection
Hearsay exception IF:
- W’s memory of the writing’s subject matter cannot be refreshed
- Writing made by W OR at his/her direction OR adopted by W
- At or near the time of the event
- W testifies that it was accurate at time created
Effect: can read into evidence
- adverse party can offer as exhibit
