Hearsay

Question 1

What is the definition of hearsay?

Answer 1

1) A declarant’s 2) out of court 3) statement 4) offered at trial to prove the truth of the matter asserted.

Question 2

FRE 802: The Rule Against Hearsay

Answer 2

Hearsay is not admissible unless provided for by:

1) A federal statute
2) An exception listed in the FRE
3) Other SCOTUS Rules

Question 3

FRE 801(b)-(c)(1): Definitions of the pieces of hearsay

Answer 3

Declarant: The declarant is the person who made the statement.
Out-of-Court: the declarant did not make the statement while testifying in a court proceeding.
Statement: An oral assertion, a written assertion, non-verbal conduct if intended as an assertion.
Offered at trial for the truth of the matter asserted.

Question 4

What are the types of statements?

Answer 4

An oral Assertion;
A written assertion;
Non-verbal conduct, if intended as an assertion.

Question 5

What does “truth of the matter asserted” mean?

Answer 5

1) To explain why the listener behaved as they did, regardless of the truth - Impact or effect on the listener.
2) To demonstrate a duty or act or establish a legal right.
3) What matters is the words that were spoken and how they affected the listener.

Question 6

What is a non-TOMA statement as it applies to hearsay?

Answer 6

If counsel can offer a relevant basis for the admission of the out of court statement other than for its truth, the statement is not hearsay. Thus, the key to TOMA is understanding why the statement is offered.

Question 7

FRE 801(d)(2): Statement of party - opponent.
(A) ?
(B) ?

Answer 7

A statement is not hearsay if:
(2) It is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity (confession).
(B) is a statement that the party adopted or believed to be true.

Question 8

FRE 801(d)(2): Statement of party - opponent (Agents):
(C): ?
(D): ?

Answer 8

A statement is not hearsay if:
(2) 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 the relationship while it existed.

Question 9

How may a relationship between an opposing party and an agent/ employee be established?

Answer 9

This relationship can be established through circumstantial evidence that proves the existence and scope of the relationship. The statement must be considered, but does not by itself establish the declarant’s authority.

Question 10

FRE 801(d)(2): Statement of party - opponent (Co-Conspirators): 
(E): ?

Answer 10

A statement is not hearsay if:
(2) It is offered against an opposing party and:
(E): Was made by the party’s co-conspirator during and in furtherance of the conspiracy.

Question 11

What is the test for admission of evidence under FRE 801(d)(2)(E) regarding statements made by co-conspirators?

Answer 11

1) A conspiracy existed at the time the out of court statement was made;
2) The conspiracy included the declarant and the party against whom the statement was offered;
3) The declarant spoke during the course and in furtherance of the conspiracy.

Question 12

If a statement is knowingly made to the police by a co-conspirator, can it be admitted under FRE 801(d)(2)(E)?

Answer 12

No. A statement made knowingly to police is outside the exception as it is no longer in furtherance of the conspiracy.

Question 13

FRE 613: Witness’s Prior Inconsistent Statements

(a) : used to impeach
(b) : extrinsic evidence

Answer 13

(a) 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.
(b) Extrinsic Evidence of a witness’s prior inconsistent statement is admissible only i 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.

Question 14

FRE 801(d)(1)(A): Witness Prior Inconsistent Statement used for Substance

Answer 14

The prior inconsistent statement of a witness is admissible for the truth of the matter asserted if it was given under penalty of perjury during a court proceeding and the witness is subject to cross-examination about the prior statement.

Question 15

FRE 801(d)(1)(B): Witness Prior Consistent Statement

Answer 15

The prior consistent statement of a witness is admissible to rehabilitate the witness if subject to cross at present and offered to rebut a charge that the witness recently fabricated the testimony or to rehabilitate the declarant’s credibility on another ground.

The prior consistent statement must have occurred before the alleged fabrication influence or motive came into being.

Question 16

FRE 804(a): Criteria for an unavailable witness

Answer 16

1) Privilege;
2) Refusal to Testify;
3) Memory Loss;
4) Death or Serious Illness;
5) Absence and an inability to procure attendance.

Question 17

FRE 804(b)(1): The Exceptions under unavailable witness - Former Testimony.

Answer 17

(b) The exceptions. The following are not excluded under hearsay if the declarant is unavailable.
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, etc. and
(B) is now being offered against a party who had an opportunity ad similar motive to develop it by direct or cross examination.

Question 18

What does “similar motive” mean in FRE 804(b)(1)(B) mean in reference to examining former testimony?

Answer 18

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.

Question 19

FRE 804(b)(2): Dying Declaration

Answer 19

In a homicide prosecution or a civil case, a statement made by the declarant while believing their death is imminent and about its cause or circumstances is admissible as an exception to hearsay.

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

Question 20

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

Answer 20

A statement that:
(A): A reasonable person in the position of the declarant would have made only if he believed it to be true because it had so great a tendency to invalidate his claim against someone else or to expose him to liability; and
(B): is supported by corroborating circumstances that clearly indicates its truth worthiness, if its is offered in a criminal case.

Question 21

What is the Williamson Standard as it applies to FRE 804(b)(3)?

Answer 21

Statements collateral to self-incriminating statements remain inadmissible hearsay, this is especially true when statements implicate someone else.

This must be done in the totality of the circumstances. It does not allow non-self-inculpatory statements even if mad within a broader narrative that is generally self-inculpatory.

Question 22

FRE 804(b)(6): Forfeiture by wrongdoing

Answer 22

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 truth of the matter asserted.

Question 23

What is the standard that FRE 804(b)(6): Forfeiture by Wrondoing is held to?

Answer 23

The preponderance of the evidence standard. A court must find by a preponderance of the evidence that:

1) the defendant engaged in some wrongdoing;
2) that was intended to procure the declarant’s unavailability as a witness; and
3) that did, in fact, procure their unavailability as a witness.

Question 24

FRE 803(1): Present Sense Impression

Answer 24

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

Question 25

FRE 803(2): Excited Utterance

Answer 25

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

Question 26

What should be considered when determining whether an excited utterance occurred?

Answer 26

Considerations:

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, physical, and mental condition of the declarant;
4) The characteristics surrounding the event.

Question 27

FRE 803(3): Then-Existing Mental, emotional, or physical condition. 
What are the three keys?

Answer 27

Three Keys:

1) Then-existing state of mind when state of mind is at issue in the case.
2) Then-existing state of mind as probative of subsequent conduct - also called plan or intent to act.
3) Then-existing bodily condition to a doctor or lay person.

Question 28

What must be considered under the Second Key of FRE 803(3): Then-existing state of mind as probative of subsequent conduct?

Answer 28

The declarant’s present intention to do some future act under FRE 803(3).

FRE 803(3) 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.

Question 29

What does the Third Key: Then existing bodily condition to a doctor or lay person under FRE 803(3) mean?

Answer 29

In litigation when a person’s mental, emotional, or physical condition is at issue out of court statements by that person describing pain, mental feelings, or bodily health at present are admissible under FRE 803(3) as then existing mental, emotional, or physical conditions.

Question 30

Under FRE 803(3) mental, physical or emotional conditions standard, do these issues have to be disclosed to a doctor to be admissible?

Answer 30

No,, the statement must only be made at or about the same time as the feeling occurs to be admissible and may be made to anyone.

Question 31

How does 803(3) treat statements of memory or belief?

Answer 31

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.

To determine if this is occurring, look for past tense statements about the declarant’s belief.

Question 32

Which one of these two would be admissible under FRE 803(3)?

1) Witness states: “Victim said: I feel like Bob is going to kill me.”
2) Witness states: “I fear for my life.”

Answer 32

1) would be inadmissible because the victim thought that Bob was going to kill her. This is not an emotional, physical or mental condition.
2) would be admissible because it does not attempt to prove the fact believed, but reflects a then-existing emotion instead.

Question 33

How is 612 used to impact 803(5)?

Answer 33

Under FRE 612, a writing may be used to refresh a witness’s memory. Then under 803(5), the same record may be read into evidence under certain circumstances.

Question 34

FRE 803(5): Recorded Recollections

Answer 34

States:

1) A record on a matter about which the witness once knew but now cannot recall well enough to testify fully and accurately (personal knowledge); and
2) Was made or adopted by the witness when the matter was fresh in the witness’s memory; and
3) Accurately reflects the witness’s knowledge can be admissible as a hearsay exception.

Question 35

What is FRE 803(5): Recorded Recollections usually used for?

Answer 35

It is usually utilized by the party that called the witness and to assist the witness to remember an important fact, rather than to impeach her. If admitted, the record may be read into evidence, but it may be received only as an exhibit if offered by an adverse party as well.

Question 36

What is the witness is recanting? Can 803(5) be used to save the case against that?

Answer 36

No. It cannot save a case in the face of a recanting witness because the recording must accurately reflect the witness’s prior firsthand knowledge.

Question 37

FRE 803(6): Business Records

Answer 37

A record of an act, event, condition, or opinion if:
A) the record was made at or near the time by someone with the knowledge;
B) the record was kept in the course of regularly conducted business;
C) Making the record was regular practice;
D) All of these conditions are shown by the testimony of the person qualified to keep the records;
E) The opponent does not show that the source of the information or the method or the circumstances of preparation indicate a lack of trustworthiness.

Question 38

Why are business records considered reliable?

Answer 38

Because they are routine and unremarkable transactions so they are unlikely to contain lies. Plus, the businesses rely on the accuracy of the records.

Question 39

FRE 805: Hearsay within Hearsay

Answer 39

Hearsay within hearsay is not excluded by the rule against hearsay as long as each part of the combined statements conform to an exception to the rule.