Hearsay Flashcards
What’s the goal of evidence?
Get the piece of evidence to the jury
Why is hearsay inadmissible?
the opponent has no opportunity to cross examine this declarant in front of this finder of fact. These statements come in for their truth without a challenge to their credibility
When will hearsay statements be allowed in?
When there is something about them that makes them inherently truthful
Elements of Hearsay
3
- an out of court statement by a human
- other than one made by the declarant while testifying at trial
- offered to prove the truth of the matter asserted.
What is a statement for hearsay purposes?
2
- oral; or, written assertion intending communication
2. non verbal conduct intended as an assertion (intended as a communication)
When can an out of court statement by a declarant be brought in?
When they made the statement at trial
If the declarant is the witness currently testifying, effect on hearsay
It is still hearsay.
The court wants to test the statement at the time of utterance –> wants to be able to cross the declarant as they said it (time machine). They could have made up a story by now.
CANNOT talk about — Any statement, written, or oral, or assertive conduct that happened outside of court
Can machine readouts be considered hearsay statements?
No, machine readouts are not statements.
Animals do not make statements
ONLY persons make statements
When is a hearsay statement not used for its truth?
- When trying to prove notice of the listener of declarant’s statement (does mean the statement was true, just trying to prove listener heard it)
* *Proving EFFECT ON LISTENER**
EXAMPLE: Plaintiff slips in a store and sues. A witness overheard someone mentioning to the store manager that he should take care of the salad oil that spilled. Declarant’s statements would be admissible to show that the manager had notice of the dangerous condition.
- Words of independent legal significance
The statement the declarant made are magic legal words “Convey Blackacre” that matter regardless of their truth - Tortious words
The statement the declarant made are magic words for a tort claim—does not matter if they are true, just that they were said
Effect of a hearsay exception?
The statement will tend to prove the fact that it covers
What are the Hearsay Exemptions?
(3)
Effect?
Come in substantively for the truth
- Statement by a Party Opponent (Formerly Admission)
- Co-conspirator’s Statements
- Prior Statements
Types of Hearsay exemptions: statement my party opponent
5
(1) Direct statement by a party
(2) Adoptive admission—either by conduct or silence
(3) Authorized admission
(4) Vicarious admission
(5) Admission by a co-conspirator
Direct Statements by an opponent party are
(a) can be a statement of fact or opinion;
(b) does not have to be against interest when made.
Think: Admissions are like emissions from a car. –> anything that comes out of their mouth when used against them are good
When thinking about party statements by party opponent, think:
Think: Admissions are like emissions from a car. –> anything that comes out of their mouth when used against them are good
An admission by silence for a party opponent requires:
Exception
that a reasonable person would have denied the statement and the declarant did not deny it
stolen watch(would not defend honor) v. cheating husband (would defend honor)
After he has been advised of right to remain silent
Adoptive admission Hearsay exemptions: There must be evidence sufficient to show
(3)
the party heard \+ Party understood statement \+ Adopted it as her own
An authorized admission Hearsay exemptions is
A statement by a party’s agent or representative.
An employee admission Hearsay exemptions is
A statement of a party’s employee offered against the party by the opponent.
- made during scope of employer-employee relationship and
+
2.within the scope of their employment
What is the co-conspirator Hearsay exemption?
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.
Statement of any co-conspirator can come in against any other co-conspirator
Requirements of co-conspiratory hearsay exemption
(1) existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence;
(2) declarant was a member of the conspiracy
(3) the statement was made in furtherance of the conspiracy
(4) the statement was was made during the conspiracy
Three types of prior statements defined as hearsay exclusions.
(3)
- Prior inconsistent statements
- Prior consistent statements
- Prior identification
For all three types of prior statements to be exempt from hearsay, there are key requirements
(3)
(1) Declarant must testify at trial
(2) Declarant must be available and subject to cross examination
(3) The statement must be either:
1. Prior inconsistent statements
2. Prior consistent statements
3. Prior identification
A prior inconsistent statement is permitted to be offered for its TRUTH if
- it is sworn (grand jury, preliminary hearing)
≠affidavit
A Prior consistent statement can be used to bring a statement in
(2)
(1) To rehabilitate the witness after an inference of recent fabrication has been raised; or
(a) Limited use, as it must predate the motive to lie.
(2) To rehabilitate the declarant’s credibility as a witness when attacked on another ground.
A Prior identification can be used to bring a statement in
where you have identified the person prior to trial today.
For all three types of prior statements to be exempt from hearsay, there must be
(1) Declarant must testify at trial
(2) Declarant must be available and subject to cross examination
What is the effect when a hearsay exception applies?
Declarant availability?
It does not matter if declarant is available or not
What is hearsay exception for present sense impression?
When there’s no filter from the perception to the mouth
Declarant said something immediately after perceiving it
- spoken very close to the time of event (simultaneous)
- declarant need not bee known
- can be boring subject matter
- in oral or in writing
What is the hearsay exception for excited utterance?
2
A statement relating to a startling event
+
made while declarant was under the stress of event or condition
- window is open a bit longer (rape victims 90 min after)
What is hearsay exception for excited utterance?
Can be used for?
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.
-to prove its truth
≠past sensation –> look for present sensations
≠ statements of memory or belief
Statements of memory or belief are only admisible when relating to
a will
What is the hearsay exception for Statements for Purposes of Medical Diagnosis or Treatment?
(2)
Includes statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or the cause.
-can be made to an any medical professional
≠ statements about blame (only showing the doctor where it hurts comes in)
-Do not point the finger, only point the thumb to where it hurts.
If mixed: and forced into all or nothing, don’t let it in.
What is the hearsay exception for Past Recollection Recorded allowed when
(4)
Emergency provision
- Unsuccessful: Refreshing (Rule 612) by a Leading Question or a Writing must have been attempted and failed. Witness must lack current memory of the event. Witness does not remember
- memorandum of the even must have been made while the matter was fresh in the witnesses mind
- Authentication: Witness must testify that the writing accurately reflects the witness’s prior knowledge—i.e., witness made or adopted the statement.
- The writing is not an exhibit: it is just read into the record by the witness
Past Recollection Recorded: Rights of adverse
4
(1) inspect the writing;
2) cross-examine with it;
3) show it to the jury for comparison;
4) introduce relevant portions into evidence.
a) Only to impeach? No. As substantive evidence? Yes. Now since proponent is using the evidence for its truth, the opponent can as well.
What is the hearsay exception for Records of Regularly Conducted Activity
(4)
Records that if not kept will be lost forever
- made in the regular course of business (≠ calendar)
- a foundation witness familiar with the record keeping process (≠ personal knowledge of writing is required)
- trustworthiness is determined by the judge
- Record cannot be made with anticipation of litigation
What is the hearsay exception for Absence of Entry in Records when?
(3)
- witness is familiar with the records
- did a diligent search of the records
- did not find a order
may be admitted to prove the non-occurrence of the event or the non-existence of the matter.
≠n
What is the hearsay exception for Public Records and Reports?
(3)
Prepared pursuant to a duty imposed by law. This includes records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
- activities of an office or agency
- 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)(≠ criminal reports)
What is the hearsay exception for Records of Vital Statistics
Records or data compilations of births, deaths, or marriages are admissible if made pursuant to requirements of law
What is the hearsay exception for Family Records?
Statements of fact concerning personal or family history contained in family bibles; genealogy charts; inscriptions on family portraits; engravings on tombstones, urns, crypts, etc. REMEMBER, admissibility versus weight to be given.
EXAMPLE: Ceramic egg inscribed with “To Chris, age 13, Easter April 14th, 1987” to prove that Chris was 13 on that date.
What is the hearsay exception for ancient Records?
2
(a) If found in a place where these items are typically found. Think archives, library, even shoebox.
(b) Includes statements in a document > 20 years old
Come in for their truth
What is the hearsay exception for Learned Treatises: ?
(2)
Effect?
Subject Areas (3)?
Read into evidence if authoritative
Textbooks, hornbooks
Foundation authoritativeness established by:
a) Judge taking notice
b) Expert says is authoritative
2) Subject area:Medicine, Science, Art and History
When is a declarant unavailable?
6
PRISM
PRISM—
Privilege (asserted), Refusal to testify, Incapacity/Incapability, Subpoena Failed (good faith attempt required), Memory witness must not remember.
Burden on the proponent of saying they are unavilable
What areas of hearsay require the declarant to be unavailable
- former testimony
- Dying Declaration
- Statements against interest
- Statement of Personal or Family History
- Forfeiture by Wrongdoing
When may former testimony hearsay exception apply
4
May be admitted for its truth if:
0) Unavailable
1) declarant made the statement under oath;
2) given by a witness in:
the same or different but related preceding or in a deposition
a) Note: The former action must involve the same subject matter, but not necessarily the same cause of action or plaintiff. Liberal application.
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. Right of a party, not the attorney.
≠Grand jury testimony is not admissible; secretive proceeding.
When may dying declaration hearsay exception apply?
For Criminal?
- Speaking about Cause of death;
- unavailable declarant (≠actual death);
- subjective belief of death;
admissible in a criminal case only if charge is homicide or any civil case.
(b) FRE 104a requires that the judge determines whether the subjective belief of imminent death was there
When may statement against interest hearsay exception apply?
(3)
Additional element if?
- non-party statement
- statement against interest when made (ownership of property, money, crimes)
- unavailable declarant
Where the defendant offers an exculpatory statement against the declarant’s penal interest
-additional element of corroboration is required
When may Statement of Personal or Family History hearsay exception apply?
(2)
- unavailable
- Statement concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history. Very specific exception.
When may Statement of forfeiture by wrongdoing hearsay exception apply?
- declarant is unavailable
- party makes the declarant unavailable
Statement of declarant can come in
When does the confrontation clause apply?
3
In a criminal case,
- when the declarant is unavailable
- Testimonial hearsay statements are inadmissible unless there is an opportunity to cross
Testimonial evidence is:
the primary purpose of police effort is to prove past events relevant to later criminal prosecution
1) public records used against defendant;
2) statements made during police interrogation;
3) collecting information from an informant;
4) preliminary hearing testimony.
≠ primary purpose to help police in ongoing emergency
If hearsay is testimonial, the only way to let it in is
Giving the ∆ an opportunity to cross the declarant
When faced with two (or more) out of court statments? Hearsay on Hearsay
There must be two independent basis’s for each statement to come in
Impeachment of a hearsay (out-of-court) declarant can be accomplished through
A hearsay declarant’s credibility may be attacked and the declarant may be impeached through bias, prior conviction, PINS, etc.
When can the catch-all hearsay exception be employed?
When statements is more probative than any other evidence
Hearsay Approach?
- Isolate the statement. Look for words like told, said, yelled, exclaimed, screamed.
- Determine who is the declarant of the statement.
Party Opponent v. Available Witness v. Unavailable - Ask if there is an assertion. (trying to communicate)
- Determine what is the purpose for which the evidence is being offered (truth or less) –if not for truth, then STOP
- If for it’s truth, look to exceptions or exemptions
- Is this a criminal case and testimonial evidence?
What is a better form of admissibility?
Statement by party opponent or Hearsay Exception?
Statement by party opponent
