Hearsay

Question 1

PUBLIC RECORDS HEARSAY EXCEPTION
What is the “public records” exception to hearsay?

NOTE: NY Distinction

Answer 1

This allows as ADMISSIABLE 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 ∆ (also cannot be admitted as a business record)

• ***NY DISTINCTION: this doctrine is NOT well developed in NY; conclusions/opinions contained in a gov’t report are admissable ONLY IF:
  (i) the report sets forth adequate facts; AND
  (ii) the person giving the opinion is qualified
  (note: usually in NY party will try for the business records exclusion)

Question 2

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

NOTE: NY Distinction

Answer 2

Nonhearsay = n.w.s. meeting common law definition of hearsay - AS they ARE stmts offered to prove the matter asserted - certain stmts are STILL ADMISSIBLE…

1) CERTAIN OUT OF COURT PRIOR STATEMENTS MADE BY THE TRIAL WITNESS:

GENERAL RULE: A WITNESS’S OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies.

3 Witness-Statement Exclusions from Hearsay (called “exclusions” or “non-hearsay”)

WHEN WITNESS HERSELF is currently subject to cross-examination AND:

(i) WITNESS ID OF A PERSON: a Witness’s prior stmt of ID of a person after seeing him is admissible hearsay

(ii) Witness’s prior inconsistent stmt if
(a) oral;
(b) under oath; AND
(c) made during formal testimonial hearingis
admissible hearsay

NOTE: serves impeachment function AND as substantive evidence

**NY DISTICTION: In NY this ONLY serves impeachment purpose

(iii) Witness’s prior consistent stmt if being used to rebut a charge of recent fabrication or improper motive is admissible hearsay

NOTE: serves rehabilitation function AND as substantive evidence

• **NY DISTICTION: In NY this ONLY serves rehabilitation purpose
• 2) PARTY ADMISSION aka Stmt of Opposing Party

ANY STATEMENT made by the opposing party is admissible for its truth if it is offered against the opposing party (personal knowledge by speaker is NOT necessary)

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
NOTE: 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: 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
* **NY DISTINCTION: stmt is admissible against principal/employer ONLY IF the principal/employer gave agent the authority (express or implied) to speak on the matter

CO-CONSPIRATOR STATEMENTS: 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 3

DECLARATION OF INTENT HEARSAY EXCEPTION

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

NOTE: NY Distinction

Answer 3

Statement of intent by declarant to do something:

(i) in the future; OR
(ii) w/another person

• ***NY DISTINCTION: IF stmt is offered to prove JOINT participation of another person, NY requires
  (1) corroboration of prior connection between declarant and other person; AND
  (2) unavailability of the declarant

THEORY: contemporaneous statement about matter as to which declarant has unique knowledge

Question 4

EXCEPTIONS TO HEARSAY RULE

What are the 14 key EXCEPTIONS to the hearsay rule?

Answer 4

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 or diagnosis
7) Business records
8) Public records

NOTE: The following EXCEPTION Require the UNAVAILABILITY of declarant…

9) Forfeiture by wrongdoing (in 6th Am confrontation req on hearsay rules)
10) Former testimony
11) Statement against interest
12) Dying declaration

OTHERS

13) Past Recollection Recorded
14) Learned Treatises

Question 5

IMPEACHMENT OF HEARSAY DECLARANTS

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

FORMER TESTIMONY

What is the “former testimony” exception to hearsay?

Answer 6

Former testimony of a now-unavailablewitness, from prior proceeding/dep is ADMISSABLE against a party who had: 1) Opportunity andmotive to cross the witness; AND 2) The issue was essentially the same

THEORY: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable

NOTE: If a grand jury witness testified to something FAVORABLE FOR ∆, and then became unavailable, the ∆ might be able to use the former testimony against the prosecution because the prosecutor, at the grand jury, did have an opportunity, and usually the motive, to develop the witness’s testimony

Question 7

PRESENT STATE OF MIND EXCEPTION TO HEARSAY

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

Answer 7

This is a 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)

THEORY: contemporaneous statement about matter as to which declarant has unique knowledge

Question 8

UNAVAILABILITY OF DECLARANT

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

**NOTE: NY Distinction

Answer 8

Grounds of Unavailability:

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 or death
4) Lack of memory
5) Declarant’srefusal to testify (even if they’d be in contempt)

• **NY has two ADDITIONAL grounds for unavailability (for CIVIL CASES ONLY)…
  6) Declarant is = 100 miles or more from ct house
  7) Declarant is a physician (public policy favors that the dr. continues their work rather than testify AGAIN)

Question 9

MEDICAL DIAGNOSIS HEARSAY EXCEPTION

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

NOTE: NY Distinction

Answer 9

This statement is admissible IF Made:

1) To ANYONE (usually medical personnel – e.g. doc, nurse, EMT, psychologist);

2) Concerning the declarant’s past/present symptoms OR GENERAL cause of condition; AND
3) For the purpose of diagnosis/treatment or diagnosis for expert testimony

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

**NY DISTINCTION: this exception does NOT apply to stmts made to a physcian SOLELY for the purpose of helping the physican to develop an opinion for expert testimnoy at trial

NOTE: This exception does not include oral statements made by a physician to the patient. (Distinguish written entries made by a physician in business records (e.g., hospital or office records).)

THEORY: A patient or injured person has a motive to be honest and accurate in order to get good medical assistance

Question 10

PRESENT SENSE IMPRESSION

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

NOTE: NY Distinction

Answer 10

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

**NY DISTINCTION: requires corroborating evidence of the contents of the present sense impression

THEORY: declarant has no time to fabricate

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

       NO: NOT HEARSAY SO NO EXCLUSION or 
                      EXCEPTION RULE RQRD

                               YES: STEP 2

                               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: NOT HEARSAY B/C of EXCLUSION SO NO             
                      EXCEPTION RULE RQRD

                               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

Question 12

DYING DECLARATION

What is the “dying declaration” exception to hearsay? NOTE: NY Distinction

Answer 12

Statement by a now-UNAVAILABLE declarant is admissible IF made:
1) In ALL civil cases OR homicide (criminal) case; **NY DISTINCTION: ONLY available in criminal HOMICIDE cases (meaning that death is the only relevant form of unavailability)

2) the declarant is under belief of impending & certain DEATH; AND
3) stmt is concerning cause or circumstances of declarant’s death

THEORY: Expectation of imminent death is a solemn occasion

Note on Confrontation: A dying declaration made to a POLICE OFFICER may be testimonial, but it most likely qualifies as an exception to the confrontation requirement of cross-examination. In dicta, the Supreme Court has noted that the admissibility of dying declarations to law enforcement officials was well established when the Sixth Amendment was adopted, meaning that dying declarations were intended to be exempt from the confrontation rule

Question 13

EXCITED UTTERANCE

What is the “excited utterance” exception to hearsay?

Answer 13

Excited Utterance is a stmt:

1) Concerning a startling event;
2) While declarant is STILL UNDER the stress of the excitement it caused.

Factors to consider…

(i) NATURE of EVENT
(ii) TIME: the passage of time (no bright line but >1hr is less likely to be valid)
(iii) VISUAL CLUES: in the fact pattern look for:
(a) exclamatory language;
(b) excitement-oriented verbs; AND
(c) EXCLAMATION PTS!!!

THEORY: excitement suspends one’s capacity to fabricate

Question 14

PRESENT PHYSICAL CONDITION HEARSAY EXCEPTION

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

NOTE: NY Distinction

Answer 14

Statement made to ANYONEaboutdeclarant’s current physical condition

**NY DISTINCTION: requires unavailability, if the stmt is made to a LAYPERSON (vs. medical professional)

THEORY: contemporaneous statement about matter as to which declarant has unique knowledge

Question 15

DEFINITION OF HEARSAY

What is hearsay?

Answer 15

2-part definition
Hearsay =

1. an OUT OF COURT STATEMENT of a person (oral or written);
2. OFFERED TO PROVE THE TRUTH of the MATTER ASSERTED IN THE STATEMENT

HEARSAY RULE: Hearsay stmts are INADMISSABLE 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 fact-finder

Question 16

STATEMENT AGAINST INTEREST

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

Answer 16

An Declarant’s stmt is ADMISSABLE for its truth IF…

1) Declarant is unavailable;

AND

2) It is against his/her:
(i) Pecuniary interest (i.e. self-damaging stmt abt fin. situation);
(ii) Property interest (i.e. something that diminishes property interest); OR
(iii) Penal interest (self-damaging stmt abt penal interest)

AND
(WHY DIFFERENT FROM PARTY ADMISSION)

3) Must be against interest when made
4) Can be made and used against ANY declarant (not just party)
5) Personal knowledge is required

THEORY: Not likely to lie when making a personally damaging statement as to such interests.

NOTE: In criminal cases statements by declarant against his penal interest must be supported by circumstances showing trustworthiness of statement (i.e., corroboration).

Question 17

Criminal ∆’s Right of Confrontation

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

NOTE: NY Distinction

Answer 17

6th A. REQUIREMENT: The sixth amendment right of confrontation requires that the criminal ∆ be “confronted” with the witnesses against him. Confrontation is the opportunity for cross-examination by the ∆

RULE: 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 declarant is UNAVAILABLE; AND
2. the ∆ has no opportunity for CROSS EXAMINATION (either before or at trial); AND
3. the stmt is TESTIMONAL
   → “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 target individual

→ NOT “testimonial” =

(i) police questioning enabling police assistance in meeting ongoing emergency;
(ii) business records (e.g., bank or phone company records);
(iii) general DNA profiling w/o ind. suspect in mind

NOTE: Even if a forensic report is testimonial, no confrontation violation occurs if the prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report to show a partial basis for her opinion without reading the report to the jury or introducing it as an exhibit. Then the report is not being used for a hearsay purpose.

Question 18

DOUBLE HEARSAY: HEARSAY WITHIN HEARSAY

What is the rule ofdouble hearsay?

Answer 18

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. → If witness testifies, “A told me what B said,” the evidence is inadmissible unless, for example, A’s statement is an excited utterance made in response to B’s excited utterance

E.g. → In a homicide prosecution against D, the victim, X, knowing he was about to die, said “D did this to me, and D said he was glad he did it as he ran away.” X’s statement is a dying declaration (level one) that contains the statement of the opposing party D (party admission) (level two)

Question 19

BUSINESS RECORDS HEARSAY EXCEPTION

What are the “business records” exception to hearsay?

NOTE: NY Distinction

Answer 19

This exception allows as ADMISSIABLE 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) Contents consist of:
(i) info observed by an employee of the business (personal knowlege); OR
(ii) info personally observed by the witness

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)

**NY DISTINCTION: certification method is ONLY permitted in:

A. CIVIL ACTIONS, where the business records are those of a nonparty that has produced its records for inspection at part of PRETRIAL DISCOVERY; OR

B. ANY TYPE OF CASE, where the business records are those of a hospital, state or local gov’t

THEORY: Businesses depend on accurate, up-to-date recordkeeping, and accuracy is likely when employees are under a business duty to make such records. Useful substitute for testimony of employees.

Question 20

NON-HEARSAY STATEMENTS

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 to prove the truth of the mater asserted in the statement (so we don’t care abt credibility of declarant)

e.g. An out-of-court statement may be relevant to some
issue simply because it was spoken (or written) — e.g. if Witness proposes to testify that after the accident, Percy said, “Damien’s car ran the red light.” — this would be allowed to show that Percy didn’t die instantly (needed for pain and suffering damages) BUT NOT Allowed as proof that Damien ran the red light.

3 Principal Categories of Non-Hearsay Purposes
—————————————————————————–
1) VERBAL ACT (Legally operative words) → A situation where the substantive law attaches rights and obligations to certain words simply because they 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’”
→ words of contract formation
—————————————————————————–
2) To Show Effect on Person Who Heard/Read Stmt
→ If person hears certain statements, may be relevant to put the listener on notice, to create fear, or to give listener motive or probable cause to do something without regard to whether the statement is true

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 listener was put on notice in a negligent action)

3) Circumstantial Evidence of Speaker’s State of Mind

E.g. “Two days before the killing, Homer said, ‘I am Elvis Presley.’” (stmt is offered to show the circumstantial evidence of speaker’s state of mind, NOT THAT he’s actually Elvis)

Question 21

FORFEITURE by WRONGDOING EXCEPTION

What is the “Forfeiture” exception to hearsay?

NOTE: NY Distinction

Answer 21

“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

**NY DISTINCTION: In NY the std of judicial review is HIGHER IT IS…Clear and Convincing Evidence

THEORY: ∆ should not benefit by her bad conduct