Hearsay

Question 1

Hearsay and Double Hearsay-Definition

Answer 1

Hearsay is an out-of-court statement offered for the purpose of establishing the truth of the matter asserted in the statement. Double Hearsay admissible if both Hearsay Statements admissible.

Question 2

Application of Definition of Hearsay

Answer 2

Three questions:

1. Is it an out-of-court statement?
2. What precisely is the out-of-court statement?

• (1) oral or written assertion or (2) nonverbal conduct intended as an assertion
  1. Is it being offered for the purpose of establishing its truth? If so, hearsay if not then not-hearsay.

Question 3

Cast of Characters - Rationale for General Rule excluding Hearsay

Answer 3

Cast of Characters

1. One scenario 1) Declarant (makes the out-of-court statement) 2) Witness (reports the statement in court)
2. Alternative scenario 1) Declarant (writes the out-of-court statement) 2) Writing (produced in court)

Rationale for General Rule Excluding Hearsay

• It denies the opponent the opportunity to cross-exam the person whose perception, memory and sincerity are in issue.

Question 4

Specific Non-Hearsay Situations

Answer 4

Specific Non-Hearsay Situations: (i.e., situations where the out-ofcourt statement is not being offered for its truth).

1. Verbal Acts or Legally Operative Facts - where the words spoken or written have relevant legal significance in the case by virtue of being spoken or written.
   * (Words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission.)
2. Out-of-Court Statement offered not for its truth but to show its effect on the person who heard or read the statement.
   * ​(E.g., to show notice to, or the good faith of, or reason for action or inaction by the person who heard or read the outof-court statement.)
3. Out-of-Court Statement offered not for its truth but as circumstantial evidence of declarant’s relevant state of mind.
   * _​_E.g. Evidence of Insanity or Knowledge

Question 5

Prior Statements of a Witness Which are NOT Hearsay

PA DISTINCTION

Answer 5

Prior Statements of a Witness Which Are Not Hearsay (These statements are in fact being offered for their truth and would be hearsay under the common law. But the Federal Rules exclude them from the definition of hearsay by express rule provisions. Therefore they are admissible non-hearsay.)

1. P_rior Inconsistent Statements_ given under oath at a trial, hearing, other proceeding or deposition.
2. Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive.
3. Prior Statement of Identification made by a witness.

PA DISTINCTION: admits these under exceptions to hearsay NOT as non-hearsay

Question 6

Statements By an Opposing Party (Party-Opponent Amdmissions)

PA DISTINCTION

Answer 6

Definition: Statement of a party offered against the party. ADMISSIBLE NON-HEARSAY

• Need not be against interest at time of making statement
• Need not be based on personal knowledge
• Can be in form of legal conclusion.

Adoptive Admissions:

• Silence: if reasonable party would have responded, and party remains silent in face of accusatory statement, silence may be considered implied admission only if:

1. party heard and understood statement
2. party physically and mentally capable of denying statement
3. reasonable person would’ve denied accusation

Vicarious Admission:

• A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during existence of the relationship.
  
  • co-parties
  • authorized spokeperson
  • principal-agent
  • partners
  • co-conspirators
• Prelim Determinations: Court must determination of relationship, court must consider contents of the statement.

PA DISTINCTION: defines as exception

Question 7

Former Testimony - Declarant MUST be UNAVAILABLE

PA DISTINCTION

Answer 7

_Definition:_Testimony given in earlier proceeding by person now unavailable is admissible if the testimony is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross or redirect examination.

Requirements: (1) meaningful opportunity for cross; and (2) unavailability of the declarant.

1. Meaningful opportunity to develop or cross-examine in the prior proceeding when the witness gave live testimony. (Grand Jury Testimony NO GOOD, NO OPPORTUNITY TO CROSS)
   
   • similar issue and motive
   • some identity of party. Party against whom offered must have been a party in first proceeding or, in civil case, at least in some form of privity with party in first proceeding.
2. Unavailability: Declarant is unavailable if court exempts declarant from testifying due to privilege, declarant refuses to testify, declarant’s memory fails, declarant is dead or sick, or the proponent of statement cannot procure declarant’s attendance by process or other reasonable means

PA DISTINCTION: adequate opportunity and similar motive to develp testimony

Question 8

Statement Against Interest - MUST BE UNAVAILABLE

Answer 8

Definition: Declaration of a person, now unavailable as a witness, against that person’s pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or which would tend to defeat a civil claim by declarant) at the time the statement was made.

Limitation: A statement that (1) tends to expose declarant to criminal liability and (2) is offered in a criminal case, must be supported by “corroborating circumstances that clearly indicate its trustworthiness.”

Distinguish statement against interest from admission of party.

1. Statement against interest must be against interest at time statement made.
2. Statement against interest may be made by any person, not necessarily by a party.
3. Statement against interest requires personal knowledge.
4. Statement against interest requires unavailability.

Question 9

Dying Declaration-Witnes MUST BE UNAVAILABLE (need not be dead)

PA DISTINCTION

Answer 9

Definition: In a prosecution for homicide or in a civil case, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death.

Requirements:

1. State of Mind - made under a belief of imminent death.
2. Declarant need not die but must be unavailable at time of trial.
3. Kind of case in which admissible: homicide or civil case.
4. Content Limitation: Must concern cause or circumstances of impending death.

PA DISTINCTION: Admissible in all cases

Question 10

Spontaneous Statements - UNAVAILABILITY IMMATERIAL

Answer 10

A group of exceptions for which unavailability is not required because the law regards prior statement as being at least as reliable as present in-court testimony. FRE 803(1)-(4) are unpacked to reveal these six exceptions.

1. Declaration of then-existing state of mind in issue. (state of mind, emotion, sensation, or physical condition)
2. Declaration of existing intent to do something in the future offered to infer that the intended future act was done.
3. Excited utterance

• _​_Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition.
• Had to be made before declarant had time to reflect
• HAS TO CONCERN FACTS OF STARTLING EVENT

1. Present Sense Impression

• ​Definition. A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
  
  • Unnecessary to have startling event or excitement
  • But must have almost precise contemporaneousness - no appreciable time lapse

1. Declaration of Present Pain, Suffering or Physical Condition.
   * ​Definition: A declaration of then existing physical (or mental) condition is admissible to show the condition. (“It hurts!”)
2. Declaration of Past Physical Condition

• ​__Definition: Statement made for medical diagnosis or treatment and describing medical history or past symptoms or sensations, their inception or their general cause insofar as reasonably pertinent to diagnosis or treatment.
• Requirements
  
  • _​_made to medical personnel
  • pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)

Question 11

Excited Utterance

Answer 11

Excited utterance

• ​Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition.
  
  • Had to be made before declarant had time to reflect
  • HAS TO CONCERN FACTS OF STARTLING EVENT

Question 12

Present Sense Impression

Answer 12

Present Sense Impression

1. ​Definition. A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
2. Distinguish from Excited Utterance

• Unnecessary to have startling event or excitement
• But must have almost precise contemporaneousness - no appreciable time lapse

Question 13

Declarations of Physical Condition

PA DISTINCTION

Answer 13

1. Declaration of Present Pain, Suffering or Physical Condition.​
   * Definition: A declaration of then existing physical (or mental) condition is admissible to show the condition. (“It hurts!”)
2. Declaration of Past Physical Condition

• ​Definition: Statement made for medical diagnosis or treatment and describing medical history or past symptoms or sensations, their inception or their general cause insofar as reasonably pertinent to diagnosis or treatment.
• Requirements
  
  • ​made to medical personnel
  • pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)

PA DISTINCTION:

• Statement must be made for purposes of medical treatment or medical diagnosis in contemplation of treatment.
• Does not extend to expert who examines only in order to testify at trial

Question 14

Preliminary questions of fact upon which admissibility depends

Answer 14

Rule: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. But in making its determination it is not bound by the rules of evidence.

Question 15

Impeaching the hearsay declarant

Answer 15

Rule. When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.

Question 16

Business Records

PA DISTINCTION

Answer 16

Definition. Records of a regularly conducted activity made at or near the time by, or from information transmitted by, a person with knowledge are admissible if kept in the regular course of the business and if it was the regular course of that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness.

Function of the Exception. Allows the record to substitute for the in-court testimony of the employees.

ENTRY MUST BE GERMANE TO BUSINESS

PA DISTINCTION:

• Exception does not extend to “opinions or diagnoses.”
• statutes preclude use of certain governmental accident reports in civil or criminal proceedings arising from the accident.

Question 17

Sixth Amendment Right of Confrontation

Answer 17

RULE: Under Confrontation clause, a hearsay statement will not be admitted (even if in exception) when:

1. the out-of court-statement is offered against the accused in a criminal case -and
2. the declarant is unavailable at the trial -and
3. the out-of-court statement was “testimonial” -and
4. the accused had no opportunity to cross-examine the declarant’s “testimonial” statement when it was made; UNLESS
5. the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial (intent was for him not to testify).

Question 18

Sixth Amendment Right of Confrontation-Definition of TESTIMONIAL

Answer 18

Definition of “Testimonial.” A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime. (This would include witness statements made to police or other law enforcement officials in response to police questioning; any testimony given at a formal proceeding, preliminary hearing, grand jury, or motion to suppress; guilty plea allocutions of coconspirators to prove that a conspiracy existed; forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA, etc.)

Question 19

Sixth Amendment Right of Confrontation-Consideration in Determining TESTIMONIALITY

Answer 19

Considerations in determining whether statements are testimonial. The issue is very case specific but factors frequently considered are:

1. Likely motivation and intent of the declarant making the statement (to get help or provide evidence?).
2. Likely motivation and intent of interrogator (to safeguard the victim or secure the scene or to get evidence”).
3. The temporal element (ongoing emergency or description of past events?).
4. Identity of person eliciting the statement (law enforcement connected or acquaintance/relative of the declarant?).
5. Degree, amount, circumstances and location of police interrogation (preliminary on-scene questions or sustained, structured questioning?).

Question 20

Sixth Amendment Right of Confrontation: Lab Analysis Certificates

Answer 20

Lab Analysts Certificates: Records prepared by laboratory technicians indicating blood, alcohol, DNA or drug test results.

• Such analyst reports have often in the past been admitted as business or public records against the accused without the presence in court of the lab technician who prepared it. Is this practice violative of the Confrontation Clause? Yes.
• NEED THE PREPARER THERE AS A WITNESS