Hearsay Flashcards
Hearsay Definition
(1) Out of court
(2) Statement
(3) Offered to prove
(4) The truth of the Matter Asserted
Hearsay Rule
Hearsay is inadmissible unless an exception or exclusion applies.
Rationale for hearsay rule
Hearsay is unreliable because: - The declarant misperceived it. - The declarant may misremember the situation. - The declarant may be lying. - The person testifying in court may misremember the statement, misheard it or is lying about it.
Thus, the law makes it necessary for the declarant herself to testify in court so that the jury can evaluate sincerity, and whether they have misperceived or misremembered the situation.
The first three categories of non-hearsay
(not used to prove the truth of the matter asserted)
(1) Verbal Act: Legally operative words
(2) Effect on Person who Heard or Read Statement
(3) Circumstantial Evidence of Speaker’s State of Mind
(1) Verbal Act: Legally Operative words
Rationale: It is not offered for the truth of the matter asserted - only that it was said or done. You are basically trying to prove an element of the claim so therefore, it is not hearsay.
Example - defamation, contract formation, solicitation of crime, bribery, or to show something like sexual harassment - e.g. coworker says “you look better without a skirt on” - offered to prove harassment not the truth of the matter(!), a gift was made, perjury, fruad.
(2) Effect on Person who Heard or Read Statement
(notice)
Rationale: It is not being offered for the truth - It is being offered, usually to show that a person
(1) had notice of a fact - a customer slips. 1hr before a witness overhead someone tell manager that floor was slippery. Statement is admissible because used to show notice not that the floor was slippery.
(2) Effect on Person who Heard of Read Statement
(Intent/motive)
Rationale: It is not being offered for the truth - It is being offered, usually to show that a person
(2) to dispute intent/motive - daughter on trial for elder abuse for not given proper medication to mother. Daughter introduces doctor’s note that said NOT to give medicaiton. Note not being offered for truth of matter but to show the effect the note had on the daughter.
(3) Circumstantial Evidence of Speaker’s State of Mind
Rationale: It is not being offered for the truth of the matter asserted so it is not hearsay.
Example - introducing that a criminal said “God told me to kill him” to show insanity (not the truth of the matter).
The next two categories are used to prove the truth of the matter asserted
(4) Prior Statements of a Trial Witness
(1) Witness’s prior Statement of identificaiton of a person
(2) Witness’s prior inconsistent statement
(3) Witness’s prior consistent statement
(5) Party Admissions
(1) statement made by opposing party)
(2) adoptive admission
(3) Agent/Employee statements
(4) Coconspirator
(4) Prior Statement of a Trial Witness
(a) Witness’s prior statement of identification of a person
Rationale: In-Court Identifications are not as reliable as identifications made under less suggestive circumstances.
(4) Prior Statements of a Trial Witness
(b) Witness’s prior inconsistent statement
Rationale: To eliminate perjury
(1) statement made under oath at a formal trial, hearing or deposition
(2) is inconsistent
(3) declarant is testifying at trial or hearing and is subject to cross concerning the statement.
these statements can be used for substantive evidence and impeachment.
(4) Prior Statement of a Trial Witness
(c) Witness’s prior consistent statement
Rationale: It is used to rehabilitate the witness but also to prove that the statement is true since if the same statement was made pre-motive, the witness is less likely to be lying
(1) statement is consistent and
(2) used to rebut charge of recent fabrication of improper motive/influence
(5) Party Admissions. Four Kinds
FOUR KINDS
(1) Statement made by opposing party if offered against party
(2) Adoptive admissions: If party remains silent under circumstances in which a reasonable person would protest if the statement were false
(3) Agent/Employee statements
(4) Statements by coconspiracy
(2) Adoptive Admissions
If party remains silent under circumstances in which a reasonable person would protest if the statement were false. Must show that the person:
(1) heard and understood the statement
(2) was physically/mentally capable of responding; and
(3) a reasonable person would have denied statement
example - “you hit the lady over the head” a reasonable person would deny that statement.
Declarant must be unavailable for these 5 Hearsay exceptions
(1) Forfeiture by Wrongdoing (witness tampering)
(2) Former Testimony
(3) Statement Against Interest
(4) Dying Declaration
(5) Statement of Personal or Family History
(3) Agent/Employee Statements are admissible if:
(1) made by agent/employee
(2) Offered against principal/employer
(3) made during the existence of the agency/employment relationship (not necessarily while the person was at work).
(4) concerns a matter within the scope of agency/employment
Determining Unavailability
(1) States claim for Privilege
(2) Absence from jurisdiction
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify
(1) Forfeiture by Wrong doing
(witness tampering)
Rationale: Defendant cannot complain about hearsay if his conduct led to the witness being unavailable
(1) Declarant unavailable
(2) if court finds by a Preponderance of the evidence that defendant’s conduct was specifically designed to prevent the witness from testifying
(3) Defendant “forfeits” both the hearsay objection and 6th Amendment objection
(2) Former Testimony
Rationale: Both an oath and the opportunity to cross-examine were already present at some point.
(1) Declarant unavailable
(2) Declarant had given testimony at a former proceeding or deposition
(3) Statement is admissible against a party (or someone in privity) who, on a prior occasion
(4) Had opportunity and motive to develop the testimony of the witness. issues w/burden both the same.
(3) Statement Against Interest
Rationale: Declarant is not likely to say something against her interest unless it is true.
(1) Declarant unvailable
(2) Against declarant’s pecuniary, proprietary or penal interest
(3) Against interest when made
(4) Declarant may be non-party
Dying Declaration
Rationale: Declarant is unlikely to lie about the cause/circumstances of her death if she truly believes that she is dying.
(1) Declarant unavailable (but does not have to be dead)
(2) Used in homicide or civil cases
(3) Statement made while believed death was impending
(4) Statement concerns cause or circumstances of death
(5) Statement of Personal or Family History
Rationale: Declarant is likely to know his family history
(a) The declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts or personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(b) Another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated w/the person’s family that the declarant’s information is likely to be accurate.
Sixth Amendment Confrontation Clause
The right to confron Witnesses who testify against you
(1) If statement is TUN testimonial - a statement is testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to criminal prosecution.
(2) Declarant is unavailable; and
(3) Defendant had no opportunity for cross-examination (either before or at trial)
even it falls w/in hearsay exception it will not be admitted.
Declarant may be Available or Unvailable for the Following Exceptions:
(1) Present Sense Impression
(2) Excited Utterance
(3) Then-Existing Mental, Emotional, or Physical Condition
(4) Statement made for Purpose of Medical Treatment of Diagnosis
(5) Past Recollection Recorded
(6) Business Records
(7) Public Records
(8) Learned Treatises
(9) Residual “Catch All” Exception
(1) Present Sense Impression
Rationale: The declarant is less likely to lie or misremember if the event is happening while he describes or explains it
(1) Declarant describes or explains event
(2) While the event is occurring or immediately thereafter.
(2) Excited Utterance
Rationale: The declarant is less likely to lie while under the stress of excitement
(1) Sufficiently startling event.
(2) Statement made while declarant is under stress of excitement.
(3) Statement relates to startling event
* consider nature of event, passage of time, exclamation points!*
(3) Then-Existing Mental, Emotional, or Physical Condition
Rationale: Declarant is less likely to lie or misremember if the condition occurs while he describes or explains it. (This is how your think, feel, your intent)
(1) Contemporaneous statement concerning present state of mind, feelings, emotions; or
(2) Current physical condition; or
said to someone. must be current condition. same as present sense impression.
(3) Intent to do something in the future
“I plan to go to FL” not “I went to FL”
It shows: intent, action, someone else’s action
(4) Statement for Purpose of Medical Treatment or Diagnosis
Rationale: Declarant has a motive to be truthful when seeking medical attention
(1) statement made to anyone (usually medical personnel but not necessarily)
(2) Concerning past/present symptoms or cause of condition
(3) for a purpose of diagnosis/treatment
MICHIGAN - does not recongize exception when statement made by doctor paid to testify.
(5) Past Recollection Recorded
(1) Insufficient recollection: showing writing to witness fails to jog memory.
(2) Witness had personal knowledge at a former time.
(3) Writing was either made by witness or adopted by witness;
(4) Making or adoption occurred while the event was fresh in the witness’s memory;
(5) Witness can vouch for accuracy of writing when made or adopted.
If admitted, it may be read into evidence. not received as exhibit.
(6) Business Records
Rationale: Businesses have incentives to keep accurate records.
(1) Records of business of any type
(2) Made in regular course of business
(3) Made at or about time of event recorded
(4) Personal knowledge: contains consists of information observed by employees of business or statements that falls within an independent hearsay exception.
Witness need not be the author of the report.
(7) Public Records
Rationale: A public official will perform his duty properly
(a) Records of a public office or agency setting forth
(1) The activities of the office or agency; or
(2) Matters observed pursuant to a duty imposed by law (excluding matters observed by police officers and other law enforcement peronnel in criminal cases); or
(3) In civil cases and proceedings against the government in criminal cases, factual findings resulting from an investigation authorized by law (OSHA insepection report) are allowed in unless sources or circumstances indicate they are untrustworthy.
MICHIGAN - does not includee item (3)
(8) Learned Treatises
(1) if reliable
(2) It may be read in as substantive evidence if expert is on stand (and to impeach if used on cross examination)
May not be introduced as an exhibit
MICHIGAN - One may use a learned treatise only on cross-examination of opponent’s expert and only for the purpose of impeachment - not as substantive evidence. It is not a hearsay exception.
(9) Residual “Catch All” Exception
Rationale: The statement is trustworthy
(a) A statement that is not otherwise covered by a hearsay exception is nevertheless still allowed into evidence if:
(1) It is trustworthy
(2) It is offered as evidence of a material fact
(3) The judge ultimately decides it will serve the interest of justice; and
(4) Notice is given to the opposing party.
(10) Some other Hearsay Exceptions
(a) Reputation concerning character
(b) judgment of previous conviction for FY offered against the def if: it was entered after a trial or PG (not NC), it is admitted to prove any fact essential to the judgment.
(c) A statement in a document that is at least 20 yrs old and whose authenticity is established.
(d) Proving familial relations: ie record of birth, marriage, death.
Animal or Machine Statements
In order for a statement to be hearsay, it must be made by a human. The following are not considered to be hearsay: time or temperature displays, an alarm clock ringing, a dog barking or the actions of a drug-sniffing dog, etc.
Michigan-Specific Hearsay Exceptions
(1) Statements by Domestic Violence Victims
(a) Criminal case involving domestic violence - a spouse, former spouse, person with whom the def resides or has resided; person with whom def has a child in common, or person w/whom def has or had a dating relationship with.
(b) A statement
(i) Made w/in 5yrs of the filing of the current case
(ii) by the victim to a law enforcement officer
(iii) describing the def’s infliction or threatened infliction of physical injury
(iv) made at or near the time of the infliction or threat of physical injury; and
(v) the circumstances indicate the statement’s trustworthiness.
Remember potential 6th amendment issues
