Hearsay

Question 1

When is it hearsay? Policy?

Answer 1

Hearsay is usually inadmissible. You will be tested on when evidence is hearsay.

You can tell if evidence is hearsay if you keep in mind why hearsay is inadmissible.

It is inadmissible because the speaker (“declarant”) cannot be cross-examined when she speaks out of court. Without cross-examination we cannot tell if declarant is lying or mistaken about the facts in her statement.

But this is a problem only if the evidence is used to prove those facts. That’s when it is hearsay.

Question 2

When isn’t it hearsay?

Answer 2

If it is used to prove anything else, we do not need to cross-examine declarant, because it does not matter if declarant is lying or mistaken about facts we are not trying to prove.

This is when it is not hearsay.

Question 3

Definition of Hearsay

Answer 3

Out of court statement offered to prove the truth of the matter asserted in that statement.

Question 4

Statement

Answer 4

Statement = verbal or written expression of a person or
conduct by a person intended to communicate (called “assertive conduct”).

Question 5

To prove defendant committed the robbery, a police officer testifies that a bloodhound trained to track a scent followed a trail from the crime scene and “pointed” at defendant. Statement?

Answer 5

No - dogs are not person

Question 6

Prosecution for bank robbery. To prove defendant
committed the crime, a police officer testifies that, at a line-up of suspects, he asked the victim if the perpetrator was present and the victim pointed at the defendant. Statement?

Answer 6

Yes

Question 7

To prove defendant committed the robbery, a traffic officer testifies that he arrested the defendant for speeding just after the bank robbery because, when he pointed his radar gun at the defendant’s car, the indicator on the gun
said, “vehicle is going 100 mph”. Statement?

Answer 7

No - not people

Question 8

To prove defendant committed the robbery, a police officer testifies that a computer printout of police files stated, “defendant has three prior robbery convictions”. Statement?

Answer 8

yes - a person typed into memory of the comp

Question 9

The tough part of the definition: Assuming an out of court statement, is it offered to prove the truth of the matter asserted? Three step approach:

Answer 9

1. Find the statement,
2. Ask what it is offered to prove, (Does the question tell you? If not, consider who offered the evidence and what it would relevant to prove in that party’s case. That is what the statement is offered to prove.)
3. Given what it’s offered to prove, will jury be misled
   if the out of court speaker was lying or mistaken?

If the answer is yes, it is hearsay.

If the answer is no, it is not hearsay.

Question 10

Defendant denies entering into the contract. Plaintiff
offers the out-of-court statement of defendant’s secretary, who said “I saw the defendant sign the contract.” Hearsay? (Notice that, if the secretary was lying or mistaken, the jury would be misled.)

Answer 10

Yes

Question 11

Circumstances where Statements are not Hearsay:

Answer 11

1. Not hearsay because statement has independent legal significance
2. Not hearsay because statement offered to show effect on listener
3. Not hearsay because statement offered to show speaker’s (or writer’s) knowledge of facts stated
4. Not hearsay because statement is circumstantial evidence of state of mind

Question 12

To prove who committed the homicide, prosecutor asks a witness “what did you tell the police?” Witness says “I told them I saw the defendant bite the victim in the neck.”

Is it hearsay, despite the fact the out-of-court declarent is now an in court witness??

Answer 12

Hearsay even if out-of-court declarant is now in court witness

Question 13

Exceptions & Exemptions to the hearsay rule Basics (not the exceptions/exemptions themselves)

Difference between Excemption and Exception to the Hearsay Rule

Answer 13

Even if the evidence is hearsay under the basic definition, it might still be admissible.

The FRE create exemptions to the usual definition of hearsay. Evidence falling within an exemption is admissible because it is not hearsay.

Even where the evidence is hearsay, the FRE also provide exceptions that makes the hearsay admissible. Here is what this all means:

On the MBE you need to distinguish between these two alternative answers: “hearsay but admissible” and
“admissible because not hearsay”. The former is correct answer for exceptions. The latter is correct answer for exemptions.

Question 14

Hearsay within Hearsay

Answer 14

Multiple hearsay or hearsay within hearsay = each level must be within exception or exemption.

Question 15

Exemptions to the Hearsay Rule:

Answer 15

All are not Hearsay under FRE:

1. Opposing Party Statement (formerly Party Admission)
   
   • distinguish from statement against interest exception
2. Prior inconsistent statement given under oath at trial or deposion
3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility
4. statement of identification of a person made after
   perceiving the person

Question 16

These exemptions apply to an out of court
statement from a declarant who now testifies at trial:

Answer 16

1. Prior inconsistent statement given under oath at trial or deposion
2. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility
3. statement of identification of a person made after perceiving the person

Question 17

Opposing Party Statement (formerly Party Admission)

Answer 17

• This is an exemption and, thus, not hearsay. Definition = statement by party, or by someone whose statement is attributable to a party, offered by a party opponent.
• Opposing party statement not subject to personal knowledge requirement or opinion rule.
• Distinguish opposing party statement from statements against interest exception

Question 18

Vicarious opposing party statement

Answer 18

Statement by:

1. authorized spokesperson of party OR
   
   • Authorization can be expressed or implied
2. employee of party concerning matter within scope of employment and made during employment relationship.

Other vicarious opposing party statements:

• Adoptive opposing party statement (nonparty makes statement and party indicates belief in its truth) and
• Coconspirator statement (made during course and in furtherance of conspiracy).

All are not hearsay.

Question 19

Exceptions to the Hearsay Rule (10)

Answer 19

1. Statements/Declaration against interest
   
   • distinguish from opposing party statement exemption
2. Former testimony
3. Dying declaration
4. Excited utterance
5. Present sense impression
6. Declaration of then existing physical or mental condition
7. Statement of past or present mental or physical condition made for medical diagnosis or treatment
8. Business records
9. Public records
10. Judgment of previous conviction

Question 20

Hearsay Exceptions requiring Unavailability:

Answer 20

1. Former testimony exception
2. Declaration against interest
3. Dying declaration exception

Question 21

Declarant is unavailable if:

Answer 21

1. court exempts declarant from testifying due to
   privilege,
2. declarant is dead or sick,
3. proponent of statement cannot procure declarant’s attendance by process or other reasonable means,
4. declarant refuses to testify despite court order, or
5. declarant’s memory fails.

Question 22

Specific Rules Regarding the Admissibility of Unavailable Witnesses:

Answer 22

1. There must have been an Opportunity to examine
2. There must be Similar motive to examine
3. Deposition testimony is admissible because under oath and opportunity to examine
4. Must be a Predecessor in interest

Question 23

Former testimony exception

Answer 23

Testimony given by a person in earlier proceeding or deposition is admissible if

1. the party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, OR
2. in a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding (a “predecessor in interest”) and who had an opportunity and a similar motive to examine the witness in that earlier proceeding.

Declarent Must be Unavailable

Question 24

Declaration against interest exception (and Distinguish opposing party statement)

Answer 24

Hearsay statement is admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability.

If the statement is offered to exculpate accused (i.e., by
showing someone else confessed to the crime), there must be corroborating evidence to admit the statement.

Declarant must be unavailable.

Distinguish opposing party statement. Opposing party statement is statement of party (or statement of another person attributed to a party) while a declaration against
interest can be made by anyone. Declaration against interest must be against interest when made. No such requirement for opposing party statement.

Question 25

Dying declaration exception

Answer 25

Hearsay statement by one believing he is about to die &
describing cause or circumstances leading to impending death is admissible in civil action and in homicide prosecution.

There is no requirement that the person giving the dying declaration must be dead in order for the hearsay to be admitted in a criminal case.

However, the only sort of criminal case that it is admissible for is a homicide prosecution.

So, if it is a Civil case, they don’t have to die, and if it is a Crim case, they don’t have to die but it has to be a homicide prosecution. So you can read into that as saying the person pretty much needs to have died for it to be a homicide prosecution, unless there were multiple victims.

Question 26

Excited utterance exception.

Answer 26

Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition.

No need to show declarant unavailable.

Question 27

Present sense impression exception.

Answer 27

Hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

No need to show declarant unavailable.

Question 28

Exception for declaration of then existing physical or mental condition.

Answer 28

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

But a statement describing a memory or belief is not admissible to prove the fact remembered or believed.

• Thus, “I remember/believe that the defendant shot the victim” is not admissible to prove defendant shot the victim.

No need to show declarant unavailable.

Question 29

Exception for statement of past or present mental or physical condition made for medical diagnosis or treatment.

Answer 29

Hearsay statement by one person concerning the past
or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment.

No need to show declarant unavailable.

Question 30

Business records exception - Hearsay is admissible if it is:

Answer 30

1. a record of events, conditions, opinions or diagnoses
2. kept in course of regularly conducted business
   activity
3. made at or near time of matters described
4. by person with knowledge of the facts in that record,
5. it was regular practice of business to make such record,
6. opponent does not show untrustworthy.

No need to show declarant unavailable.

Question 31

Multiple Levels of Hearsay and Business Records Exception

Answer 31

Business records exception can cover multiple levels of hearsay

Question 32

Business Records and Records Made in Anticipation of Litigation

Answer 32

Records created in anticipation of litigation are not business records

Question 33

Public records exception. Hearsay record of a public office is admissible if within one of the following categories:

Answer 33

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); or
3. record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent shows untrustworthy.
   
   • In criminal case, prosecution cannot use #3.

No need to show declarant unavailable.

Question 34

Judgment of previous conviction

Answer 34

Hearsay statement describing felony conviction (eg, copy of the judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible.

No need to show declarant unavailable.

Question 35

Confrontation Clause

Answer 35

Even if hearsay law does not make the evidence inadmissible, the Confrontation Clause (CC) of the US Constitution might make inadmissible an out of court statement offered by the prosecution against defendant in a criminal case.

Question 36

Under Crawford v. Washington, the CC excludes an out-of-court statement if:

Answer 36

1. declarant does not testify at the trial,
2. is now unavailable,
3. the statement is “testimonial”, and
4. defendant had no chance to cross-examine declarant about the statement when it was made.

The full meaning of “testimonial” is unclear, but it at least applies to statements:

1. made in court and
2. statements made to further a police investigation aimed at producing evidence for a prosecution.

Statements to police to deal with an ongoing emergency are non-testimonial and their admission does not violate the CC.