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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

801(a)-(c) Defining Hearsay

A

1) a declarant’s
2) out of court
3) Statement
4) offered at trial to prove the TRUTH OF THE MATTER ASSERTED

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2
Q

802: The rule against Hearsay

A

Hearsay is not admissible unless provided for by:

1) a federal statute
2) AN EXCEPTION IN THE FRE
3) other SCOTUS rules

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3
Q

Definitions of declarant and out-of-court

A

declarant is the person who made the statement

out-of-court means that the declarant did not make the statement while testifying at the current trial or hearing.
- MUST BE THIS COURT, STATEMENT MADE AT PREVIOUS COURT HEARING IS AN “OUT-OF-COURT” STATEMENT

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4
Q

What is a Statement?

A
  • an oral assertion
  • a written assertion
  • non-verbal conduct, if intended as an assertion
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5
Q

What is the primary problem of hearsay?

A

The primary problem of hearsay is the inability of counsel to test the declarant through cross-examination.

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6
Q

FRE 801(d)(2) Statement of Party-Opponent

Agent/ Co-Conspirator

A

Agents:
(c) was made by a person whom the party AUTHORIZED to make a statement on the subject [or]

(d) was made by the party’s AGENT or employee on a matter within the SCOPE OF THAT RELATIONSHIP and WHILE IT EXISTED [or]

Co-Conspirators:
(e) was made by the party’s CO-CONSPIRATOR during and in FURTHERANCE of the conspiracy

  • Threat these statements as EXCEPTIONS to the four hearsay components
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7
Q 
FRE 801(d)(2)(A) Statement of Party Opponent: 
(own statement)
A

a party’s OWN words are not hearsay when offered against her at trial

  • Threat these statements as EXCEPTIONS to the four hearsay components
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8
Q

Assertions: Non-Verbal Conduct

A

If a person wants or INTENDS TO CONVEY a SPECIFIC MESSAGE to a listener or audience through his conduct, he is probably making an “assertion” under FRE 801

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9
Q

Non-TOMA (Truth of the matter asserted)

A

If counsel can offer a relevant basis for the admission of the out-of-court statement other than for “its truth,” the statement is non-hearsay.

Thus, the key to the TOMA analysis is understanding why the statement is offered.

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10
Q

Non-Hearsay Uses of Out-Of-Court Statements

A

To explain why the listener behaved as he or she did, regardless of truth – IMPACT or “EFFECT ON THE LISTENER.”

To demonstrate a DUTY TO ACT or establish a LEGAL RIGHT

What matters is that the words were spoken and the listener heard them, not their truth.

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11
Q

Hearsay Roadmap: FRE 801(d)(2)(A-E)

Exceptions to the Hearsay rule:

A

Statements by Party Opponents:

  • Individuals
  • Adopted
  • Agents/Employees
  • Co-Conspirators
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12
Q

Are admissions hearsay?

A

No, Admissions are excluded as hearsay on the theory that their admissibility into evidence is the result of the adversary system.

  • No guarantee of trustworthiness is required in the case of an admission.
  • a party’s own statement is the classic example of an admission
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13
Q

FRE 801 (d)(2) Statement of Party- Opponent

A

A statement is not hearsay if it is offered against an opposing party and:

(A) Was made by the party in an individual or representative capacity [or]

(B) Is a statement that the party adopted or believed to be true [or]

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14
Q 
FRE 801(d)(2)(D) Statement of Party-Opponent
- Agents/Employees:
A

Agents/Employees:

A statement is not hearsay if it is offered against an opposing party and:

(C) Was made by a person whom the party authorized to make a statement on the subject [or]

(D) Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed [or]

A statement made by a party’s agent or employee on a matter within the scope of that relationship and while it existed is not hearsay when offered against the party at trial.

The modern judicial consensus is that Rule 801(d)(2)(D) DOES NOT require personal knowledge or the authority to speak on behalf of the principal.

A substantial trend favors admitting statements under [a broad interpretation of] the rule

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15
Q 
FRE 801 (d)(2)(E) Statement of Party- Opponent
- Co-Conspirators:
A

A statement is not hearsay if it is offered against an opposing party and:

(e) was made by the party’s co-conspirator during in furtherance of the conspiracy

A statement by a party’s co-conspirator is not hearsay when offered against her at trial.

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16
Q 
FRE 801(d)(2)(C) Statement of Party-Opponent 
(other person)
A

a statement made by a person authorized to make a statement on the subject.

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17
Q 
FRE 801(d)(2)(E) Test for Admission 
(Co-Conspiracy)
A

A conspiracy EXISTED AT THE TIME of the out of court statement was made

The conspiracy INCLUDED THE DECLARANT AND THE PARTY AGAINST whom the statement was offered

The Declarant spoke DURING THE COURSE AND IN FURTHERANCE of the conspiracy

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18
Q 
FRE 801(d)(2)(E) Standard of Proof
(Co-conspiracy)
A

Courts have held that the moving party must make a case for the conspiracy by a preponderance of the evidence.

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19
Q

Impeachment and Hearsay Rules

A 
FRE 613 Witness's Prior Statement
FRE 801(d)(1)(A) Declarant- Witness's Prior inconsistent Statement
FRE 801(d)(1)(B) Declarant- Witness's Prior consistent Statement
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20
Q

801(d)(2)(E) Conspiracy Exception

A
  • a joint venturer is considered a co-conspirator even if NO CONSPIRACY is FORMALLY CHARGED
  • a statement made KNOWINGLY TO POLICE is outside of the exception as it is not in furtherance of the conspiracy
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21
Q

Hearsay [and impeachment] roadmap

A

Prior inconsistent witness statements admissible to impeach under FRE 613

Prior inconsistent witness statements admissible for TOMA under FRE 801(d)(1)(A)

Prior consistent witness statements admissible for TOMA under FRE 801(d)(1)(B)

22
Q

FRE 613 Witness’s Prior Inconsistent Statement to Impeach

A
  • Evidence of a witness’s OWN prior inconsistent statement
  • Whether SPOKEN or in WRITING
  • is admissible if the WITNESS is given an opportunity to EXPLAIN or DENY the statement
  • and an ADVERSE PARTY is given an opportunity to examine the witness about it.

FRE 613 allows admission of prior statements only to impeach the testimony of a witness who testifies in conflict with the prior statement.

The WPRIS may not be considered by the jury as evidence. Rather – it may only be used to challenge the credibility of the present testimony.

A WPRIS is offered merely to show that the witness told a different story at a different time. As a result, the statement is not for the TOMA and is not hearsay.

The restrictions of FRE 613(b) do not apply when the past statement is made by an opposing party under FRE 801(d)(2).

23
Q

FRE 801(d)(1)(A) Witness’s Prior Inconsistent Statement

A

Prior inconsistent statement of a witness

  • is admissible for TOMA
  • if it was given under penalty of perjury during a court proceeding or deposition
  • and the witness is subject to cross-examination ABOUT the prior statement [at present]

To be admissible, the prior statement need not have been subject to cross-examination at the time that it was made – just at the time it is offered.

24
Q

FRE 801(d)(1)(A) & Grand Juries

A

FRE 801(d)(1)(A) does not require that the witness was subjected to cross when the prior statement was made.

  • Just have to be subject to cross examination at time it is offered
  • Grand Juries are HELLA SKETCH
25
Q

FRE 801(d)(1)(B) Witness’s Prior Consistent Statements

A

Prior consistent statements of a witness

  • is admissible to rehabilitate witness
  • if subject to cross [at present[ and
  • offered to rebut a charge that the witness “recently fabricated [the testimony]” or to reabilitate the declarant’s credibility on another ground [such as faculty memory]”

In order to be admissible under 801(d)(1)(B), a prior consistent statement must have occurred before “the alleged fabrication, influence or motive came into being.”

26
Q

Hearsay Exceptions- When Declarant is Unavailable

A

FRE 804(a)

FRE 804(b)(1) Former Testimony

FRE 804(b)(2) Dying Declaration

FRE 804(b)(3) Statement Against Interest

FRE 804(b)(5) Forfeiture by wrongdoing

27
Q

FRE 804(a) Reasons for Unavailable Witness

A

1) Privilege
2) Refusal to testify
3) Memory Loss
4) Death or serious illness
5) Absence- and inability proponent to procure attendance OR testimony by reasonable means.

28
Q

FRE 804(b)(1) Former Testimony Exception

A

1) Given as a witness at trial, hearing, or deposition [whether in the current proceeding or different one] AND
2) is now offered against a party who had an OPPORTUNITY AND A SIMILAR MOTIVE to develop it by direct, cross, or redirect examination

Similar motive does not mean identical motive – a court must make a factual inquiry based on the similarity of the underlying issues and the context of the questioning

Generally, civil trial testimony by a now-unavailable witness is inadmissible in a criminal trial because the motive to develop the testimony is different for criminal defendants facing loss of liberty [prison] as opposed to civil defendants facing damages [that likely will be paid by an insurer].

The stakes in a civil trial are quantitatively less and qualitatively different that those in a criminal trial.

29
Q

FRE 804(b)(2) Dying Declaration

A

1) In a homicide prosecution or in a civil case
2) a statement made by the declarant while BELIEVING HIS OR HER DEATH to be IMMINENT and ABOUT ITS CAUSE OR CIRCUMSTANCES
3) is admissible as an exception to hearsay
- IMMINENT DEATH IS NOT REQUIRED TO ADMIT A DYING DECLARATION!!!!
- All that is required that declarant believed their death to be imminent

The declarant must have spoken with a settled hopeless expectation that death is near at hand and what is said must have been spoken in the hush of its impending presence.

It must be inferable from the statement that declarant had personal knowledge of the facts contained in the statement seeking admission.

Speculation about a culprit or cause of death is inadmissible under FRE 804(b)(2).

30
Q 
FRE 804(a) & (b)
Hearsay Exceptions when unavailable witness
A

Statements by Unavailable Declarant:

1) Prior Testimony
2) Dying Declarations
3) Statements Against Interest
4) Forfeiture by Wrongdoing

31
Q

FRE 804(b)(3) Statement Against Interest

A

A statement:

1) made by an unavailable declarant/witness [and]
2) that a reasonable person in the position of the declarant would have made only if he believed it to be true because
3) it was contrary to his interests [or[
4) Had so great a tendency to invalidate his claim against someone else or to expose him to civil or criminal liability [and]
5) is supported by corroborating circumstances that clearly indicate its trustworthiness-
6) [only if] offered in a criminal case [by either side] as one that tends to expose the decarant to criminal liability

FRE 804(b)(3) does not allow for non-self inculpatory statements even if made within a broader narrative that is generally self-inculpatory [Williamson]

32
Q

Williamson v. United States

one of few cases need to know

A

After a consent search of his car yields cocaine, Harris makes self-inculpatory statements during post-arrest interview.

Harris also identifies Williamson in cocaine trafficking conspiracy.

Harris refuses to testify at trial, despite immunity. His statements against Williamson are admitted per FRE 804(b)(3).

Statements “collateral” to self-incriminating statements remain inadmissible hearsay.

Also – “this is especially true when statement[s] implicate[ ] someone else.”

The question of what is against interest must be viewed by the TOC.

33
Q

Statement Against Interest: Corroboration Requirement Factors

A

A statement by an unavailable witness must be supported by corroborating circumstances that clearly indicate its trustworthiness –

Factors:
The timing and conditions under which the statement was made.

The party to whom the statement was made.

The declarant’s motive in making the statement and whether there was a reason to lie.

34
Q

Foundation of FRE 804(b)(3) :Statement Against Interest

A

FRE 804(b)(3) “is founded upon the commonsense notion that reasonable people, even [those] who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.

35
Q

FRE 803(2) Excited Utterance

A

A statement

Relating to a startling event or condition

Made while the declarant was under the stress of the excitement that [the event] caused.

Factors court use to decide if excited utterance or not

1) The lapse of time between the startling event and statement.
2) Whether the statement was a spontaneous utterance or a response to a question.
3) Age and physical and mental condition of declarant.
4) aThe characteristics surrounding the event.

36
Q

FRE 803(1) Present Sense Impression:

A

A statement

Describing or explaining an event or condition

Made while or immediately after the declarant perceived it

37
Q

FRE 804(b)(1) Depositions

A

Depositions may be admissible in civil cases under FRE 804(b)(1) if the party against whom the deposition is offered had an opportunity and similar motive to examine the deponent.

38
Q

FRE 804(b)(6) Forfeiture by Wrongdoing

A

A hearsay statement :

  • offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarant’s unavailability as a witness
  • and did so intending the result
  • is admissible for the TOMA.

A court must use a preponderance of the evidence standard to determine whether a party has engaged in conduct justifying a forfeiture under FRE 804(b)(6).

The court “need not hold an independent evidentiary hearing if the requisite findings may be made based upon evidence presented in the course of the trial.”

39
Q

Test for 804(b)(6) Forfeiture by Wrongdoing

A

Court must find by POE

1) a D engaged in “some wrongdoing”-
2) that was INTENDED to procure the declarant’s unavailability as a witness and-
3) that did, IN FACT, procure his or her unavailability as a witness

40
Q

FRE 803(3) Then- Existing Mental, Emotional, or Physical Condition

A

(1) Statement of the declarant’s then-existing state of mind when state of mind is at issue in the case as an element of a crime, cause of action, or defense.
- Look for facts targeting the declarant’s state of mind.
(2) Then-existing SOM as probative of subsequent conduct – also called plan or intent to act.
- must be interpreted so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of ANOTHER PERSON
3) Then-existing bodily condition to a doctor or lay person.
- In litigation when a person’s M-E-P condition is at issue –
- OOC statements by that person –
- Describing pain, mental feeling, or bodily health at present
- Are admissible under FRE 803(3) as then-existing M-E-P.
- Rule 803(3) does not require that a statement regarding M-E-P condition be made to medical personnel.
- Rule 803(3) requires a statement about M-E-P condition at or about the same time as the feeling occurs.
- FRE 803(3) does not allow a statement of memory or belief to prove the fact remembered or believed, unless the validity of a will is involved.

Look for past tense (“backward-looking”) statements or statements about the declarant’s belief.

41
Q 
FRE 803(3) Then Existing Mental, Emotional, or Physical Condition 
- Inadmissible to Prove what?
A

IDADMISSIBLE TO PROVE THE FACT BELIEVED

Witness claims, “Victim said, ‘I feel like Bob is going to kill me’” – to prove that the victim believed that Bob wanted to kill her.

Inadmissible under FRE 803(3)

Victim’s statement , “I fear for my life” is admissible as it does not attempt to prove the fact believed but reflects a then-existing emotion.

42
Q

FRE 803(5) Recorded Recollection

A

A record on a matter about which the witness once knew but now cannot recall well enough to testify fully and accurately [and]

Was made or adopted by the witness when the matter was fresh in the witness’s memory [and]

Accurately reflects the witness’s knowledge – is admissible as a HS exception.

-FRE 803(5) is usually utilized by the party who called the witness and to assist the witness remember an important fact – not to impeach her.

(Must have witness, and must not remember the statement or memo)

-If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

43
Q

when can FRE 803(5) Recorded Recollection not be used?

A

may not save a case in the face of a recanting witness.

Why?

The recording must accurately reflect the witness’s prior firsthand knowledge – a problem if the witness cannot vouch for the accuracy of the writing.

(only used by party to assist the witness remember an important fact- not to impeach her)

Other possible options are

FRE 801(d)(1)(A) “Prior Inconsitent Statement” works IF

1) the witness testifies in front of a grand jury
2) the witness then appears at trial
3) the witness’s memory loss is not credible and, as a result, it is “inconsistent.”

FRE 804(b)(1) works even more effectively if the witness testifies at a preliminary hearing at which he is cross-examined. Why?

The witness’s “memory loss” makes him “unavailable” per FRE 804(a) and his former testimony is admissible.

44
Q

FRE 805 Hearsay Within Hearsay

A

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

45
Q

FRE 803(6) Business Records

A

A record of an act, event, condition, opinion, or diagnosis is admissible as a hearsay exception IF:

1) the record was made AT OR NEAR the time by SOMEONE WITH KNOWLEDGE;
2) the record was kept in the course of REGULARLY CONDUCTED ACTIVITY of a business [or occupation];
3) making the record is a REGULAR PRACTICE of that activity;
4) All of these conditions are shown by the TESTIMONY OF THE CUSTODIAN or another qualified witness [or by a CERTIFICATE THAT QUALIFIES under FRE 902(11) or (12)]
5) that OPPONENT does not show that the source or method of preparation is untrustworthy

46
Q

What is the difference between FRE 803 and FRE 804?

A

803 availability of the decelarant is immaterial

804 the declarant MUST be unavailable

47
Q

Hearsay Exceptions: Availability of declarant immaterial (FRE 803)

A

FRE 803(1) Present Sense Impression:

FRE 803(2) Excited Utterance

FRE 803(3) Then- Existing Mental, Emotional, or Physical Condition

FRE 803(5) Recorded Recollection

FRE 803(6) Business Records

48
Q

FRE 803(3) Then Existing State of Mind or Physical Condition covers what?

A

covers statements of PRESENTLY-EXISTING

1) intent (“I plan to get fucked up after this exam”
2) Belief (“I think my breaks are bad”)
3) attitude (“ I dont like his bitch ass”)
4) Motive (“I owe him one”)
5) Mental feeling (“ I am bored studying this lame ass class”)
6) Pain (“my head fucking hurts doooood”)
7) Bodily Health (“I have the flu”)

49
Q

Hearsay Exceptions: When Declarant MUST be unavailable

FRE 804

A

FRE 804(b)(1) Former Testimony Exception

FRE 804(b)(2) Dying Declaration

FRE 804(b)(3) Statement Against Interest

FRE 804(b)(6) Forfeiture by Wrongdoing

50
Q

3 Types of opposing party statements

A

1) Opposing Party Statements made in individual or Representative Capacity
2) Opposing Party Statements made by Party’s Agent or Employee
3) Opposing Party Statements made by Co-Conspirator

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