Hearsay

Question 1

Definition of Hearsay

Answer 1

A statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement

^{[<em>Rule 801(c)(1)-(2)</em>]}

Question 2

_{<em>Statements that are NOT Hearsay: </em>}

A Declarant-Witness’s Prior Statement

Inconsistent

Answer 2

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was given under penalty or perjury at trial, hearing, or other proceeding or in a deposition

Russo Factors:

(1) Must testify at trial
(2) Must be subject to cross-examination
(3) Must be inconsistent with courtroom testimony
(4) Must have been made under penalty of perjury
(5) Must have been made at trial, proceeding, etc.

Question 3

_{<em>Statements that are NOT Hearsay: </em>}

A Declarant-Witness’s Prior Statement

Consistent

Answer 3

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Russo Factors:

(1) Must testify at trial
(2) Must be subject to cross-examination
(3) Must be consistent with testimony on stand
(4) To rebut charge of recent fabrication or rehabilitate
(5) Statement must be made before the motive to lie arose

Question 4

_{<em>Statements that are NOT Hearsay: </em>}

A Declarant-Witness’s Prior Statement

ID of a Person

Answer 4

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(C) identifies a person as someone the declarant perceived earlier

Russo Factors:

(1) Must testify at trial
(2) Must be subject to cross-examination
(3) Prior statement was ID of a person

Question 5

Five Questions to Determine Hearsay

Answer 5

(1) Does the evidence contain a statement?
(2) Was the statement made outside the courtroom?
(3) Is the party offering the statement to prove the truth of the matter asserted within it?
(4) Does an exception apply?
(5) Does the 6th Amendment limit or preclude that statement?

Question 6

Declarant Available Exceptions (803):

Present Sense Impression

Answer 6

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

• Right as it’s happening or right after
• Limited to description; no analysis

^{<em>Rule 803(1)</em>}

Question 7

Declarant Available Exceptions (803):

Excited Utterance

Answer 7

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

• Statement occurs while declarant is excited by event
• Must relate to event; may include analysis

^{<em>Rule 803(2)</em>}

Question 8

Declarant Available Exceptions (803):

• Then-Existing Mental, Emotional, or Physical Condition*
• (Mental State)*

Answer 8

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

• Hillman stuff; WA goes by Hillman Doctrine
  
  • WA adopts doctrine in - 105 W.2d 632 (1986)

^{<em>Rule 803(3)</em>}

Question 9

Declarant Available Exceptions (803):

Records of a Regularly Conducted Activity

Answer 9

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

^{<em>Rule 803(6)</em>}

Question 10

Declarant Available Exceptions (803):

Absence of a Record of a Regularly Conducted Activity

Answer 10

Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.

^{<em>Rule 803(7)</em>}

Question 11

Declarant Available Exceptions (803):

Public Records

Answer 11

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.

^{<em>Rule 803(8)</em>}

Question 12

Declarant Available Exceptions (803):

Absence of a Public Record

Answer 12

Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that

(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

^{<em>Rule 803(10)</em>}

Question 13

Declarant Available Exceptions (803):

Statements in Ancient Documents

Answer 13

A statement in a document that is at least 20 years old and whose authenticity is established

^{<em>Rule 803(16)</em>}

Question 14

Declarant Available Exceptions (803):

Market Reports and Similar Commercial Publications

Answer 14

Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

^{<em>Rule 803(17)</em>}

Question 15

Declarant Available Exceptions (803):

Statements in Learned Treatises, Periodicals, or Pamphlets

Answer 15

A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

^{<em>Rule 803(18)</em>}

Question 16

Declarant Unavailable Exceptions (804):

Former Testimony

Answer 16

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) 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.

Quick List:

(1) Prior testimony at trial, hearing, or deposition
(2) Opposing party must have had opportunity to question declarant in the prior trial or hearing
(3) Opposing party’s motive in questioning the declarant in the prior hearing must have been similar to the motive the opposing party would have in cross-examining the declarant in the current trial
(4) Criminal - same party as the opposing party in current case (defendant); Civil - predecessor in interest (same or similar motive)
* Rule 804(b)(1)*

Question 17

Declarant Unavailable Exceptions (804):

Statement Under the Belief of Imminent Death

Answer 17

In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Quick List:

(1) Homicide or civil case
(2) Declarant unavailable
(3) Statement concerned cause or circumstance of death
(4) Must subjectively believe that death is imminent

^{<em>Rule 804(b)(2)</em>}

Question 18

Criteria for Being Unavailable

^804(a)

Answer 18

A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.

^{<em>Rule 804(a)</em>}

Quick List:

(1) Privilege
(2) Refusal to Testify
(3) Lack of Memory
(4) Death, Physical Illness, Mental Illness
(5) Absence

Question 19

Proof of Unavailability

Answer 19

The proponent of a hearsay statement offered under Rule 804 has the burden of proving that the declarant is unavailable.

(1) Privilege

• Party must call declarant to the stand and question her
• Declarant asserts privilege
• Judge decides whether unavailable under Rule 804(a)(1)

(2) Refusal to Testify and Lack of Memory

• Party must call the declarant to the stand
• Declarant refuses to testify or states lack of memory
• Judge decides whether unavailable
• Parties often make this showing outside the jury’s presence

(3) Death or Illness

• Party introduces death certificate or other evidence of death
• Party introduces documentary evidence or live testimony to show condition
• If recovery is likely, judge may postpone trial

(4) Absence

• Party must show good faith, genuine effort to procure the declarant’s attendance
• Could make showing by documenting efforts made to contact declarant, including registered letters or subpoenas sent to the declarant
• Must show that used reasonable means to obtain deposition

Question 20

Declarant Unavailable Exceptions (804):

Statement Against Interest

Answer 20

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Quick List:

(1) Unavailable
(2) Proprietary or pecuniary interest
(3) Against declarant’s interest at time
(4) Supported by corroborating circumstances

^{<em>Rule 804(b)(3)</em>}

Question 21

Declarant Unavailable Exceptions (804):

Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Answer 21

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Quick List:

(1) Unavailable
(2) Intention to make declarant unavailable
(3) Wrongfully (not ethically, but legally; rises to crim level)
(4) Reason witness is unavailable

^{<em>Rule 804(b)(6)</em>}