Hearsay

Question 1

Definition of Hearsay

Answer 1

An out of court statement offered to prove the truth of the matter asserted

Question 2

Statement

Answer 2

verbal or written expression of a person or conduct by a person intended to communicate

Machines are not people, but machine transmitting person’s thoughts could be hearsay

animals are not people

Question 3

Offered to prove the truth of the matter Asserted

Answer 3

(1) find the statement, (2) ask what it is offered to prove, (3) ask whether the jury will be mislead if the speaker was lying or mistaken. If yes, hearsay. If not, not hearsay b/c no need to cross the declarant. Truth is immaterial. Thus:

• Legally operative facts are not hearsay (words of K or defamation, “gift”)
• Statement offered to show effect on listener is not hearsay (notice, emotional distress, or knowledge)
• Statement offered to show circumstantial evidence of state of mind (I am Dracula not offered to show he is Dracula. Trying to prove insanity)

Question 4

EXEMPTIONS to the hearsay rule

Answer 4

Not considered hearsay . MBE will say “admissible b/c not hearsay”

• Opposing party statement
• PIS given under oath at trial or deposition
• Prior consistent statement offered to rebut charge of recent fabrication or improper motive or impeachment
• Statement of identification of a person as someone the W perceived earlier

CA: only has EXCEPTIONS. No exemptions.

Question 5

Opposing Party Statement (Admissions by party opponent)

Answer 5

Statement by a party, or by someone whose statement is attributable to a party, offered by a party opponent

Not limited by personal knowledge or opinion. Can even be predicated on hearsay.

Question 6

Silence as an adoptive admission

Answer 6

If a reasonable person would have responded, and a party remained silent in the face of accusatory statements, his silence may be considered an implied admission if:

(1) the party heard and understood the statement,
(2) the party was physically and mentally capable of denying the statement; and
(3) a reasonable person would have denied the accusation

NOTE: silence in the face of accusations by police in a CRIMINAL case is almost never considered an admission of a crime

Question 7

Vicarious opposing party statement

Answer 7

Statements made by (1) authorized spokesperson of party (express or implied), or (2) employee of party concerning matter within scope of employment and made during the employment relationship

Also present in co-conspirators, partners in partnerships

CA: vicarious admission found only where negligent conduct of declarant is the basis for employer’s liability under respondeat superior (essentially, only if it would be responsible in tort law)

Question 8

Unavailability

Answer 8

Unavailable if:

(1) privileged,
(2) refuses to testify despite court order (FED ONLY),
(3) testifies to lack of memory on the subject of statement (FED ONLY),
(4) unable to testify due to death or physical/mental illness; or
(5) is absent and unable to be procured by reasonable means

Former testimony, statements against interest, dying declarations, statements of personal or family history require unavailability

CA: includes if declarant suffers total memory loss (amnesiac) or refuses to testify out of fear

Question 9

Former Testimony Exception

Answer 9

Tx given by a person in earlier proceedings or depositions is admissible if declarant unavailable and:

(1) the party AGAINST whom the testimony is offered was a party in the former action (or in privity relationship/predecessor in interest in a civil case)
(2) the testimony was given under oath, and
(3) the party against whom the tx is now offered had an OPPORTUNITY to examine at the prior proceeding and a similar MOTIVE to conduct that exam thoroughly

NOTE: grand jury offers no opportunity to examine. But, grand jury tx is admissible under PIS b/c merely requires “formal proceeding”

CA: Broader. Civil case, if not a party to prior proceeding, no privity/predecessor in interest requirement. Only requires that earlier party had an opportunity to examine and a SIMILAR interest to conduct the examination
CA: if former testimony is offered AGAINST the person who offered it on her own behalf in the earlier proceeding, or against a successor in interest of such a person, it is ADMISSIBLE

Question 10

Declaration against interest

Answer 10

Hearsay admissible if declarant unavailable and if statement, at time it was made, was against the FINANCIAL interest of declarant or would have subjected declarant to CRIMINAL LIABILITY, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true

CRIMINAL CASES: If statement offered to exculpate accused, there must be corroborating evidence to admit the statement

CA: also includes statements against SOCIAL interest

Question 11

Dying Declarations

Answer 11

IN A HOMICIDE OR CIVIL ACTION, a statement made by a now-unavailable declarant is admissible if:

(1) the declarant believed his death was imminent; and
(2) the statement concerned the cause or circumstances of what he believed to be his impending death

Traditionally, death was required. Federal rules, Declarant need not die, but must be unavailable.

CA: exception applies in all civil and criminal cases. Declarant MUST BE DEAD.

Question 12

Statements of Personal or Family History

Answer 12

Statements by unavailable declarant concerning births, marriages, divorces, relationships, are admissible if:

(1) the declarant is a member of or intimately acquainted with the family in question; and
(2) the statements are based on personal knowledge of teh facts

Question 13

Excited Utterance

Answer 13

Statement relating to a startling event, made while under the stress of the excitement from the event. Declarant need not be unavailable

NOTE: need not be immediate like PSI. Timing does not matter

CA: same

Question 14

Present sense impression

Answer 14

statement describing or explaining an event or condition that is made while declarant was perceiving the event or condition, or IMMEDIATELY thereafter. No need for unavailability.

CA: narrower. Statement must explain the CONDUCT of the declarant made while the declarant was ENGAGED IN THAT CONDUCT

Question 15

Present State of Mind

Answer 15

Statement of declarant’s then existing physical or mental condition is admissible to show the condition or state of mind.

Usually offered to establish a person’s intent or as circumstantial evidence that intent was carried out

NOTE: NOT admissible to prove the fact remembered or believed (I remember/believe will never work under this). “Was” will not work either.

CA: same

Question 16

Statement of past or present mental or physical condition made for medical diagnosis or treatment

Answer 16

Statement concerning the past or present mental or physical condition, or its cause, of ANY person is admissible if MADE FOR and PERTINENT to medical diagnosis or treatment.

No need to show unavailability.

Question 17

Business Records Exception

Answer 17

Admissible if it is:

(1) a record of events, conditions, opinions or diagnosis,
(2) kept in the course of regularly conducted business activities (customary to record),
(3) made at or near the time of the matters described,
(4) by a person with knowledge of the facts in the record,
(5) regular practice of biz to make such record (duty to record),
(6) opponent does not show that it is untrustworthy

No unavailability requirement.

CA: does not explicitly refer to diagnosis or opinions, but courts will admit simple opinions and diagnosis

Question 18

Public Records Exception

Answer 18

Admissible if by a public office and within one of the following categories:

(1) record describes activities and policies of the office
(2) Record describes matters observed pursuant to duty imposed by law (but NOT police reports in CRIMINAL cases)
(3) record contains factual findings resulting from investigation made pursuant to authority granted by law (3 not available to prosecution to use in CRIMINAL cases)

CA: no criminal exceptions. Record made by a public employee is admissible if (1) making record was within scope of her duties, (2) made at or near the time of matter’s described, and (3) circumstances indicate trustworthiness

Question 19

Judgment of Previous Conviction

Answer 19

A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment

NOTE: in a CRIMINAL case, if used for purposes other than impeachment, may not be used against persons other than the occused

CA: this exception generally applies only in civil cases. BUT, certified copy of judgment of conviction remains admissible under public records exception

Question 20

Ancient Documents

Answer 20

Statements in any authenticated document 20 years old or more are admissible

Question 21

Documents Affecting Property Interests

Answer 21

Statements in any document affecting an interest in property are admissible, REGARDLESS of age

Question 22

Market Reports

Answer 22

Admissible if generally used and relied upon by the public or by persons in a particular occupation

Question 23

Family Records

Answer 23

Statements of fact concerning family history contained in family bibles, jewelry, genealogies, tombstone engravings, etc. are all admissible

Question 24

Learned Treatises

Answer 24

Admissible as substantive proof if relied upon by an expert witness and established as reliable authority

Question 25

Confrontation Clause

Answer 25

CC excludes an out of court statement if declarant DOES NOT testify at the trial, is now unavailable, statement is “testimonial”, and D had no chance to cross-examine declarant about the statement when it was made

“testimonial” def is unclear, but it definitely applies to statements made in court and statements made to further a police investigation aimed at producing evidence for a prosecution

Statements made to police due to an ongoing emergency are NOT testimonial and thus does not violate CC

Question 26

The OJ Exception

Answer 26

CA only: Statement describing infliction or threat of physical abuse is admissible if made:

(1) Declarant unavailable,
(2) statement made AT OR NEAR TIME of injury or threat,
(3) statement describes or explains the infliction or threat,
(4) statement is in WRITING OR RECORDED, and
(5) statement was MADE TO POLICE or MEDICAL PROFESSIONAL, under trustworthy circumstances

NOTE: look for confrontation issues

Question 27

California Exception for Past or Present Mental or Physical Condition made for Diagnosis or Treatment

Answer 27

In CA, statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, BUT ONLY if declarant is a MINOR describing an act of CHILD ABUSE or NEGLECT

BUT, in CA, past physical or mental condition is admissible to prove that condition if it is AT ISSUE in the case.

• Doesn’t even require that statement be made for medical purposes
• declarant must be unavailable