Hearsay

Question 1

What is the 2 part definition to hearsay?

Answer 1

1) Out of court statement made by a person (oral or written, cannot be an animal or machine)
2) Offered to prove offered to prove trust asserted in a statement

Question 2

What is the hearsay rule?

Answer 2

Hearsay is inadmissible unless an exception or exclusion applies.

Question 3

Why do we even have a hearsay rule?

Answer 3

The credibility of the declarant (out-of-court speaker or author) at the time the statement was made was not tested through cross-examination in the presence of the current fact-finder.

Question 4

What is a non-hearsay statement?

Answer 4

An out of court statement that may look like hearsay at first glance, but is not hearsay if it is not offered to prove the truth of the matter asserted in the statement. May have been offered for some other purpose.

Question 5

What is an example of a non-hearsay statement?

Answer 5

If it was offered for the purpose of showing someone is alive for example. Allegation may be that the person died instantly but witness may say he said to me ‘it was Milo’s fault in the accident after the accident’. Evidence cannot be offered to show that Milo was at fault but the mere speaking of words can because it not offered for reasons of credibility.

Question 6

So what are three categories of non-hearsay purpose?

Answer 6

1) Verbal Act of legally operative words
2) Showing effect on person who heard or read statement; and
3) Circumstantial evidence of speaker’s state of mind.

Question 7

Explain a situation where a verbal act of legally operative words is a non-hearsay statement.

Answer 7

A situation where the substantive law attaches rights and obligations to certain words simply because they were spoken such as, in CONTRACT, GIFTS, BRIBES, FRAUD, DEFAMATION or WORDS ACCOMPANYING AMBIGUOUS ACTS

Question 8

What is the non-hearsay statement that shows effect on a person who heard or read the statement?

Answer 8

Its where a person hears someone else make certain statements that may be relevant to put listener on notice of something or create fear or give the listener a motive or probable cause to do something without regard to whether statement is true. IE: I told the shop assistant there was a broken jar in aisle three. Cant be used to prove jar broken but can be as evidence that you were on notice.

Question 9

What is a non-hearsay statement that acts as circumstantial evidence of speaker’s state of mind?

Answer 9

It is a statement showing insanity, ‘i am elvis presley, it’s good to be back’ ALSO a false alibi implies consciousness of guilt, asking a question may imply lack of knowledge.

Question 10

What is the general rule about the prior statement of a trial witness?

Answer 10

A witness’s own prior statement if offered to prove truth of the matter asserted in the statement is hearsay and is inadmissible unless an exclusion or exception applies.

Question 11

What are the 3 witness statement exclusions from hearsay?

Answer 11

Where the witness is currently subject to cross-examination and

1) Witness’s prior statement of ID of a person (in NY called an exception);
2) WItness’s prior inconsistent statement if oral, under oath and made during formal testimonial hearing (in NY only admissible to Impeach); or
3) WItness’s prior consistent statement if being used now to rebut charge of recent fabrication or improper motive (but in NY admissible only to rehabilitate credibility).

Question 12

What is a party admission (statement of an opposing party) rule?

Answer 12

Any statement made by the opposing party is admissible for its truth if it is offered against the opposing party

Question 13

What is the theory behind statements of opposing party or party admissions?

Answer 13

Party ought to bear the consequences of what she says. Can explain to jury, and connote complain about inability to cross-examine yourself.

Question 14

Where is a statement by an agent/employee admissible against the principal/employer?

Answer 14

Where statement concerns matter within the scope of agency/employment and is made during the existence of the agency/employment relationship

Question 15

What is the extra New York requirement to the vicarious party admission?

Answer 15

Not only does the statement have to be within the scope of agency/employment and made during the existence of agency/employment relationship but it will also only be admissible as a vicarious party admission only if the principal/employer gave the agent/employee the authority to speak about the matter.

Question 16

Is the statement of a co-conspirator admissible against the party who was a member of the conspiracy?

Answer 16

Yes, if made 1) during and 2) in furtherance of the conspiracy.

Question 17

What justifies one of the 12 hearsay exceptions?

Answer 17

They are justified by reliability factors or other good reasons sufficient to excuse inability to cross-examine declarant.

Question 18

What are the 12 main hearsay exceptions?

Answer 18

1) Forfeiture by wrongdoing
2) Former testimony
3) Statement against interest
4) Dying declaration
5) Excited utterance
6) Present sense impression
7) Present state of mind
8) Declaration of intent
9) Present physical condition
10) Statement for purpose of obtaining medical treatment or diagnoses
11) Business records
12) Public records

Question 19

What does the 6th amendment right of confrontation require?

Answer 19

It requires that the criminal defendant be confronted with the witnesses against him.

Question 20

What does 6th amendment right of confrontation give the criminal defendant an opportunity to do?

Answer 20

Cross examine

Question 21

In the context of hearsay what does the existence of the 6th amendment right of confrontation mean?

Answer 21

That 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
3) The defendant has had no opportunity for cross examination

Question 22

What are the three forms of testimonial?

Answer 22

1) Grand Jury testimonial
2) Statements in response to police interrogation (i.e. at crime scene police ask victim what happened, then at trial they refuse to testify, these statements cannot be used against defendant) NON testimonial statements are those given in ongoing emergency that assist police.
3) Documents. (sworn affidavits and forensic lab reports are testimonial (where the primary purpose would be to accuse targeted individual of criminal conduct).

Question 23

How do we get a forensic report in even if it is testimonial?

Answer 23

Where prosecutor calls a testifying expert who performed an independent analysis of the data, and 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 as an exhibit.

Question 24

What is the forfeiture by wrongdoing hearsay exception?

Answer 24

Evidence will be admissible against a defendant whose wrongdoing made the witness unavailable where the court finds that

1) Preponderance of evidence that they carried out wrongdoing; and
2) Defendant’s conduct designed to prevent testimony by witness.

Question 25

What is the burden of proof for showing a evidence is admissible against a defendant where their wrongdoing made the witness unavailable?

Answer 25

In federal it is preponderance of evidence, in NY it is clear and convincing evidence.

Question 26

What is the former testimony hearsay exception?

Answer 26

Former testimony of now unavailable witness, if given at a former proceeding or deposition is admissible against a party who had an opportunity and motive to cross-examine or develop testimony of witness. ISSUE IN BOTH PROCEEDINGS MUST ESSENTIALLY BE THE SAME.

Question 27

What are the 5 grounds that would make a witness unavailable that mean its former testimony may be made available? (+ TWO NY EXTRAS FOR CIVIL CASES ONLY)

Answer 27

1) Privilege
2) Absence from jurisdiction (cannot be found or beyond subpoena power)
3) Illness/death
4) Lack of memory
5) Stubborn refusal to testify.
NY extra
6) Declarant is located 100 miles or more from courthouse
7) Declarant is a physician.

Question 28

What is the statement against interest hearsay exception? What is the basis for it?

Answer 28

It is the use of an UNAVAILABLE declarant’s statement against his or her money, property or criminal liability. Basis it is made is that you are not likely to lie when making a personally damaging statement as to such interests.

Question 29

What is the dying declaration hearsay exception?

Answer 29

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.

Question 30

What types of cases can a dying declaration be used in?

Answer 30

In criminal homicide cases only and in any type of civil cases EXCEPT in NY they can only be used in criminal homicide.

Question 31

Is a dying declaration testimonial for purposes of 6th amendment criminal confrontation?

Answer 31

Maybe, but more likely that it is an except to the the confrontation requirement of cross-examination.

Question 32

What is the excited utterance hearsay exception? What is the theory behind it?

Answer 32

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event. Theory being that excitement suspends a capacity to fabricate.

Question 33

What are the three factors to consider in determining whether a statement qualifies as an excited utterance??

Answer 33

1) Nature of event
2) Passage of time
3) Visual clues, 1) Exclamatory phrase 2) excitement oriented verb or 3) Exclamation point.

Question 34

What is the present sense impression hearsay exception? What is the theory behind this? NY EXCEPTION?

Answer 34

Description of an event made while the event is occurring or immediately thereafter. Here the declarant has no time to fabricate. In NY there must be corroborating evidence of the happening of the event described by the declarant.

Question 35

What is the present state of mind hearsay exception? What is the theory behind this?

Answer 35

Contemporaneous statement concerning declarant’s present state of mind, feelings, emotions. the theory behind this is that its a contemporaneous statement about a matter as to which declarant has unique knowledge.

Question 36

What is the declaration of intent hearsay exception and it’s NY version? What is the theory behind this?

Answer 36

1) Statement of the declarant’s intent to do something in the future, including the intent to engage in conduct with another person. IN NY if the statement of future intent is offered to prove joint participation, NY requires corroborating evince of relationship between declarant and other person and require that declarant is available.
2) the theory behind this is that its a contemporaneous statement about a matter as to which declarant has unique knowledge.

Question 37

What is the present physical condition hearsay exception and it’s NY version? What is the theory behind this?

Answer 37

Statement made to anyone about declarant’s current physical condition. IN NY if a statement of present physical condition is made to a layperson, rather than medical professional, the declarant must be unavailable.
2) the theory behind this is that its a contemporaneous statement about a matter as to which declarant has unique knowledge.

Question 38

What is the Statement made for the purpose of obtaining medical treatment or diagnoses hearsay exception?

Answer 38

1) Statement made to anyone for purpose of obtaining medical treatment or diagnoses if if concerns declarant’s present symptoms, past symptoms or General cause of condition (NOT statements describing details of liability or identity of tortfeasor).

Question 39

What is the theory behind allowing a statement made for the purpose of obtaining medical treatment or diagnoses as a hearsay exception?

Answer 39

A patient or injured person is going to have a pretty strong motive to be honest and accurate in order to get good medical assistance! BUT it is not going to let in oral statements made by physician to patient EXCEPT IN NY where it does not apply to statements made to a physician for the purpose of helping them to develop an opinion for expert testimony at trial.

Question 40

What are the elements of the business records hearsay exception?

Answer 40

1) Records of a business of any type, 2) made in regular course of business (info is recorded germane to business), 3) The business routinely keeps such records, 4) made at or about the time of the event recorded and 5) Contents consist of information observed by employees of the business (including medical treatment, expert diagnoses, opinions on general causation of patients injury contained in medical/hospital records); or a statement that falls within an independent hearsay exception.

Question 41

What is the theory behind the business records hearsay exception?

Answer 41

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

Question 42

How do we prove the business records foundation to be able to rely on it as a hearsay exception?

Answer 42

1) call sponsoring witness to testify to 5 elements of the exception, they don’t have to be author of report, can be records custodian, OR
2) Written certification under oath attesting to elements of business records hearsay exception.

Question 43

What is the more narrow NY method of proving the business records foundation is established so we can rely on it as a hearsay exception?

Answer 43

Certification only permitted in three circumstances:

1) In civil cases, 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 44

What is the public records hearsay exception?

Answer 44

Records of a public office or agency setting forth:

1) Activities of agency or office (i.e. payroll records); or
2) Matters observed pursuant to a duty impose by law (weather bureau records of temperature); or
3) Findings of fact or opinion resulting from an investigation authorized by law (OSHA inspection report on safety conditions at factory).

Question 45

What is excluded from the public records exception?

Answer 45

Police reports prepared for prosecutorial purposes are not admissible against the D in a criminal case.

Question 46

Is a hearsay within a hearsay statement allowed?

Answer 46

If a hearsay statement is included within another hearsay statement, the evidence is inadmissible unless each statement falls within a hearsay exception.

Question 47

Can we impeach hearsay declarants?

Answer 47

Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted to evidence