Hearsay

Question 1

Hearsay is:

Answer 1

An out of court statement other than one made by the declarant while testifying at trial offered to prove the truth of the matter asserted

Question 2

A statement (FRE 801(a)) is either:

Answer 2

a. Oral or written assertion
b. Conduct intended as an assertion (assertive conduct)
c. Assertive conduct is conduct intended to communicate as a substitute for words.

**Must be from a human

Question 3

Analysis of Hearsay Issues: Hearsay Approach

Answer 3

1. Isolate the words in question.
2. Determine who is the declarant.
3. Ask if there is an assertion.
4. Determine the purpose for offering the evidence
   a. If for its truth = hearsay (go to step 5).
   b. If not for its truth = not hearsay. (impeachment, verbal acts, state of mind rule 801(d))
5. Apply the hearsay exceptions.

Question 4

Evidence Offered for Non-Hearsay Purposes

Answer 4

Effect on the listener (notice, motive, etc.).

State of mind (Knowledge, Intent, Attitude, Effect on listener/declarant)

Verbal Acts (Independent Legal Significance, Legally Operative Facts)

Condition of a person

Nature of a place

Question 5

Statements Which Are Not Hearsay

Answer 5

Admissions
Co-Conspirator Statements
Prior Inconsistent/Consistent Statements
Prior Identifications

Question 6

Statements Which Are Not Hearsay

Types of admissions:

Answer 6

(1) Direct admission;
(2) Adoptive admission—either by conduct or silence;
(3) Authorized admission;
(4) Vicarious admission;
(5) Admission by a co-conspirator.

Question 7

Statements Which Are Not Hearsay

Direct Admissions

Answer 7

Admission by a party opponent used against them

(a) can be a statement of fact or opinion;
(b) personal knowledge not required (I guess it was my fault—after I gave you my car and the brakes failed);
(c) the party need not be available.

Note: Don’t confuse with FRE 804(b)(3) statement against interest, which does require personal knowledge.

Question 8

Statements Which Are Not Hearsay

Adoptive admission:

Answer 8

Must be evidence sufficient to show that the party heard and understood the statement and adopted it as her own

(a) An admission by silence requires a reasonable person would have denied the statement
(b) Once a party has been advised of his right to remain silent, adoptive admissions do not apply and are not applicable where defendant has been given his Miranda warnings

Question 9

Statements Which Are Not Hearsay

Authorized admission

Answer 9

A statement by a party’s agent or representative.

Agency can be express or implied.

Question 10

Statements Which Are Not Hearsay 
Employee admission (Vicarious admission)

Answer 10

A statement of a party’s employee offered against the party by the opponent.

The statement must be made:

(a) During the existence of the employment relationship
(b) must concern a matter within the scope of the employment

Question 11

Statements Which Are Not Hearsay

Co-conspirator’s statements:

Answer 11

Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists.

Requirements:

(1) existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence;
(2) declarant be a member of the conspiracy
(3) statement made in furtherance of the conspiracy
(4) Made during the existence of the conspiracy

Note: A conspiracy does not end until all of the conspirators are apprehended.

Question 12

Statements Which Are Excluded From Hearsay

Answer 12

(a) Prior Inconsistent Statement
(b) Prior Consistent Statement
(c) Prior Identification

Declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement

Question 13

Statements Which Are Excluded From Hearsay

Prior inconsistent statement: FRE 801(d)(1)(A)

Answer 13

A prior inconsistent statement is permitted to be offered for its truth if sworn and subject to penalty of perjury under oath at a trial, deposition, or other proceeding

(a) Grand jury: Yes, its sworn
(b) Coroner’s inquest: Yes, its sworn
(c) Affidavit: No, not sworn

Question 14

Statements Which Are Excluded From Hearsay

Prior consistent statement: FRE 801(d)(1)(B)

Answer 14

(1) Used to rehabilitate the witness after an inference of recent fabrication has been raised; commonly used with children and informants.
(2) A prior consistent statement is permitted to be offered for its truth if offered to rebut a charge of recent fabrication or improper influence subject to the above-mentioned requirements.

Question 15

Statements Which Are Excluded From Hearsay

Prior identification:

Answer 15

A prior statement of identification of a person made after perceiving him can be admissible.

Question 16

Preliminary Determinations

Answer 16

Before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered.

In making such a determination, the court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship.

Question 17

Hearsay Exceptions - Declarants Unavailability Immaterial

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

Answer 17

1) Present sense impression
2) Excited utterance
3) Then-existing mental, emotional, or physical condition
4) Statement made for medical diagnosis or treatment
5) Recorded recollection
6) Records of regularly conducted activity
7) Absence of record of regularly conducted activity
8) Public records
9) Records of vital statistics
10) Absence of public record
11) -23) Other miscellaneous exceptions

Question 18

Present Sense Impression: FRE 803(1)

Answer 18

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it

Characteristics and requirements:

1) Spontaneity
2) Personal Knowledge
3) Declarant need not be known or available (Can be anonymous)
4) Can be unexcited utterance
5) Can be oral or in writing

Question 19

Excited Utterance: FRE 803(2)

Answer 19

A statement relating to startling event made while declarant was under the stress or excitement caused by the event or condition

Characteristics and requirements:

1) Speak while under the stressful influence of a startling event or condition
2) Personal Knowledge
3) Need not be immediate (can be later as long as still under stress or excitement)

Question 20

Then-Existing Mental, Emotional, or Physical Condition: FRE 803(3)

Answer 20

A statement of declarant’s then-existing physical, emotional, or mental condition is admissible if relevant to show declarant’s state of mind.

Includes statements to prove intent, plan, motive, design, mental feeling, pain, or bodily health.

Characteristics:

1) Need not be made to a medical person
2) Prospective statements of intent

This exception does not include past sensations and statements of memory or belief

Will Exception:
Statement by a testator is admissible (yesterday I revoked my will so my ex-husband will get nothing)

Question 21

Statements for Purposes of Medical Diagnosis or Treatment: FRE 803(4)

Answer 21

Includes statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or the cause.

Characteristics:
1) Statement can be made to any medical personnel (excludes paramedics) or family member

The statement must be one which is useful for diagnosis and treatment.

Statements admitting or assessing fault are not included.

Question 22

Past Recollection Recorded: FRE 803(5)

Answer 22

Used where the witness has a present memory problem. Attempt to refresh under 612 – the effort has to fail – witness must lack current memory.

Requirements:

1) Writing/record is read into evidence, but the writing itself is not received as an exhibit unless offered by an adverse party
2) Memorandum must have been made while fresh in witnesses mind
3) Authentication: Witness must testify the writing accurately reflects the witness’ prior knowledge, i.e., witness made or adopted the statement.
4) Cooperative reports the declarant makes a statement to a second declarant who makes the statement to a third declarant

Question 23

Past Recollection Recorded: FRE 803(5)

Rights of the adverse party:

Answer 23

1) inspect the writing;
2) cross-examine with it;
3) show it to the jury for comparison;
4) introduce relevant portions into evidence. Only to impeach? No. As substantive evidence? Yes.

Question 24

Records of Regularly Conducted Activity: FRE 803(6) (Business Records Exception)

Answer 24

A memorandum, record, or report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such a record or report, as shown by affidavit or by the testimony of the custodian or other qualified witness (no personal knowledge needed), provided the information does not lack trustworthiness.

Caveat: Prepared in anticipation of litigation are inadmissible

Note: Police accident reports are better to be brought as public records under FRE 803(8) because they are generally prepared in anticipation of litigation and testified in subsequent litigation.

Question 25

Absence of Entry in Records: FRE 803(7) and 803(10)

Answer 25

Evidence that a matter is not included in records or data compilations kept in accordance with the business or public records rules may be admitted to prove the non-occurrence of the event or the non-existence of the matter.

Foundation: Witness must testify familiar with the records, diligently searched, found no record of the event

Question 26

Public Records and Reports: FRE 803(8)

Answer 26

Similar foundation as business records, except proponent need not show the record was routinely made at or near the time.

Key: Prepared pursuant to a duty imposed by law. This includes records, reports, statements, or data compilations, in any form, of public offices or agencies

Question 27

Public Records and Reports: FRE 803(8)

Requirements:

Answer 27

1) Activity of the public officer or agency
2) Matters observed pursuant to duty imposed by law as to which there was a duty to report (e.g., certified tax record, W-2 form);
3) Certified copies are self-authenticating.

Question 28

Public Records and Reports: FRE 803(8)

Criminal Case Limitations:

Answer 28

This category does not include (in criminal cases) matters observed by police officers and other law enforcement personnel (i.e., police reports inadmissible v. defendant; homicide report prepared by detective is inadmissible v. accused: untrustworthy).

However, if the police report is offered by the accused v. prosecution, it can be admitted.

Question 29

Public Records and Reports: FRE 803(8)

Civil Case Rule:

Answer 29

Fact findings from official investigations pursuant to a duty imposed by law are admissible

These records are inadmissible if the way they are prepared shows a lack of trustworthiness

Question 30

Hearsay Exceptions: Declarant Unavailable

Answer 30

1) Former Testimony
2) Dying Declarations
3) Statement Against Interest
4) Statement of Personal or Family History
5) [Other Exceptions.] [Transferred to Rule 807.]
6) Forfeiture by wrongdoing

Question 31

To recall what constitutes unavailability, remember mnemonic PRISM

Answer 31

Common Law/Statutory Privilege, 
Refusal, 
Incapacity/Incapability, 
Ignored Subpoena, 
Memory.

Question 32

Former Testimony: FRE 804(b)(1)

Answer 32

May be used for its truth if:

1) declarant made the statement under oath;
2) given by a witness in same or different proceeding, deposition – former or different action must involve the same subject matter, but not necessarily the same cause of action
3) The party against whom the evidence is being offered must have had an opportunity and similar motive to examine the witness and develop the testimony, on direct, cross-examination, or redirect.

Question 33

Statements Under Belief of Impending Death: FRE 804(b)(2) (Dying Declaration)

Answer 33

(a) Cause of death; unavailable declarant; belief of death; admissible only in a homicide or civil case.
(b) Judge will determine if the declarant subjectively believed that death was imminent – death need not actually result

Question 34

Statements Against Interest: FRE 804(b)(3)

Answer 34

Do not confuse this with an 801 admission:
Personal knowledge is not required under 801 but is required here

Requirements: Statement of unavailability by non-party against interest when made:

P – Pecuniary Interest
P – Penal Interest
P – Proprietary Interest

Question 35

Forfeiture by Wrongdoing: FRE 804(b)(5)

Answer 35

A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the hearsay rule).

Question 36

Confrontation Clause

Answer 36

Under the Sixth Amendment’s Confrontation Clause:

Criminal Case – Testimonial evidence would be inadmissible unless there is an opportunity for cross exam

Question 37

“Testimonial evidence” in this context refers to situations where:

Answer 37

Primary purpose for the police interrogation is to prove past events for later criminal prosecution

Testimonial evidence may include:

1) public records used against defendant;
2) statements made during police interrogation;
3) collecting information from an informant.

NOTE: If testimony is testimonial, defendant must be given a chance to cross examine

Question 38

“Non-testimonial evidence” includes situations:

Answer 38

Where primary purpose is to aid the police during on-going emergency

Question 39

A criminal defendant forfeits his Confrontation Clause rights if

Answer 39

he causes the unavailability of the declarant either through forfeiture by wrongdoing or dying declaration with the intent to prevent that declarant from testifying at the trial or hearing.

Question 40

Hearsay Within Hearsay (Rule 805) (Multiple Hearsay)

Answer 40

When faced with two (or more) out-of-court statements both primary and include statements must have separate basis for admissibility otherwise entire statement is excluded

Common situations include business records, medical records, or charts.

Question 41

Residual Exception (Rule 807) (Catch-All Equivalency)

Answer 41

A statement not otherwise covered by an exception to the hearsay rule is nevertheless not excluded by the hearsay rule under certain circumstances:

(1) Statement must be more probative than any other evidence
(2) he party must give notice to the opposing party.
(3) The statement must concern a material issue (relevancy).
(4) The judge ultimately determines whether, in the interest of justice, the statement should be admitted.