Hearsay

Question 1

What is hearsay?

Answer 1

Hearsay is an out of court statement offered for the truth of the matter asserted.
• Statement
• Made out of court
• Offered for the truth of the matter asserted.
○ Key question is what is the proponent trying to prove by offering the statement into evidence.
○ If trying to prove that the out-of-court statement is true, then the statement is hearsay because secondhand reports are inherently unreliable and we have no way of testing the accuracy and truth of the out-of-court statement.

Question 2

What is the rule if a party is using an out of court statement as part of the witness’s knowledge?

Answer 2

Not hearsay.

The witness can testify from firsthand knowledge about the fact that the statement was made, as well as about who made the statement, its exact wording, and any other relevant details.

Question 3

What are the four questions to ask to determine whether something is hearsay (hearsay four)?

Answer 3

1) Is the witness referring to a statement that occurred outside the courtroom?
2) Are you sure it’s a statement?
3) Is a party offering the statement to prove the truth of the matter asserted?
4) Does an exception apply?

Question 4

What is a statement?

Answer 4

a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
• Assertion - any action undertaken by the declarant that is intended to communicate a fact.
• Conduct can make an assertion and is considered a statement if the declarant intended to communicate a fact through her conduct.

Question 5

What is the difference between assertive conduct and non-assertive conduct?

Answer 5

To tell the difference, ask: Do we need to assess the actor’s sincerity in order to rely upon the conduct?
○ If yes, the conduct contains an assertion and the hearsay rule applies.
○ If no, the actor was not trying to assert any fact, and the jury is free to draw any reasonable inference from the reported conduct.
(would a reasonable person intend the action to be an assertion?)

E.g. - You are asked if it is raining outside and you shake out your wet umbrella in response. This is an assertive action and would fall under the hearsay rule. If you walk inside and shake out your umbrella to get the water off before putting it away, this is a nonassertive statement and will not follow under the hearsay rule. The second action will be allowed to allow the jury to make any reasonable inference from the conduct.

Question 6

What is the rule regarding electronic media and hearsay?

Answer 6

Electronic media almost always contain statements, and they cannot be entered to assert the truth of the matter asserted. They can be used to show that a certain person said a particular thing or had a certain knowledge.

Media that is unlikely to contain a statement: photos, videos, websites without words.

Question 7

Can automated machine information contain a statement?

Answer 7

Automated machine information is not a statement (e.g., alarm going off because a sensor was tripped is not a statement. However, if someone intentionally presses the button that sounds an alarm (like a bank teller) this is a statement, and would be hearsay).

Question 8

Would a restaurant receipt be a statement?

Answer 8

Is a restaurant receipt a statement? A machine printing out the time or date is an automated process and this is not a statement. However, the server name and items served would be a statement because a human (the server) input that information, making an assertion that the people ordered those items.

Machines can convey a human assertion which will then qualify as a statement. Judge will look at whether the information incorporates a human assertion.

Question 9

What are the four categories of hearsay Exceptions?

Answer 9

Rule 801(d) - "Not" hearsay
Rule 804 - Declarant not available
Rule 803 - Apply whether the declarant is available or unavailable. Applies when submitted for the truth of the matter asserted.
Rule 807 - residual exception

Question 10

What three types of declarant witness’s prior statements are considered “not hearsay”?

Answer 10

Under this rule (801(d), the declarant must testify and be subject to cross examination for a prior statement.

1. Statements that are inconsistent with the witness’s courtroom testimony
2. Statements that are consistent with that testimony
3. Pretrial identification of a person - prior statement was identification of a person.

Question 11

When is a declarant witness’s prior statement that is inconsistent with the witness’s courtroom testimony allowed?

Answer 11

Prior statement must be

1) inconsistent with the witness’s current testimony,
2) made under the penalty of perjury, and
3) occurred at a deposition, trial, hearing, or other proceeding.

• Sworn statement to a police officer does not meet this criteria (is not a proceeding).
• Inconsistent includes when the witness makes a prior statement and then refuses to say anything, or claims memory loss, at trial.
• Memory loss, whether real or feigned, will still meet the criteria requiring cross-examination.

Question 12

When are statement’s that are consistent with witness’s courtroom testimony allowed?

Answer 12

Admissible only if 1) the witness’s credibility has been attacked and 2) prior statement helps rehabilitate that credibility.

If other party shows that the witness had a motive to lie (e.g., cut a deal to testify), then the prior statement must be before the witness developed the motive to lie.

If witness made a statement to police, then committed a crime for which she was offered a deal, then testified before a grand jury, only the statement to police can be offered.

Question 13

What is a present sense impression?

Answer 13

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
• E.g. - Baseball announcer is describing the play by play action; “It’s a swing and a miss.”
• Must only describe the facts of the event. The declarant’s analysis or interpretation of the event would not fall under this exception. E.g. - Baseball announcer states “he is the fastest person in the league”;
• Rational - accuracy (not relying on memory), sincerity (no time to make up a lie)

Question 14

What is an excited utterance and when is it allowed?

Answer 14

A statement relating to a startling event or condition, made while the declarant was under the stress of the excitement it caused.
• Subjective standard - declarant must speak while excited by some event ( Some people get excited over different things). Statement must be related to that event.
• May occur longer after an event (than present sense impression) if the speaker is still excited.
Can include analysis.

Question 15

What is a “then-existing Mental, Emotional, or Physical Condition” and when can it be included as an exception to hearsay?

Answer 15

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 declarants will.

Only the part of the statement referring to the internal condition, and not external events that led to the condition, are admissible under this rule. E.g. - “I missed breakfast. I’m hungry.” Only “I’m hungry” is admissible.

What are you trying to prove? If trying to prove an event in the past, then 803(3) will not apply. However, can use to show the declarant believed that event occurred.

Question 16

When is a Statement made for medical Diagnosis or Treatment allowed under a hearsay exception?

Answer 16

A statement that is made for – and is reasonably pertinent to – medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Does not go towards blame. If the declarant says “John threw me to the floor”, this would not be admissible because it blames a certain person. The statement must be relevant to the medical care.

Statements not limited to the injured party. Family member who brings the person to the hospital and speaks to the doctor could also fall under this exception.

Question 17

What is a recorded recollection and when is it allowed as an exception to hearsay?

Answer 17

• Six foundation elements:
○ Record
○ Witness made or adopted that record
○ Witness once had personal knowledge
○ Witness made or adopted that record when that knowledge was fresh
○ Witness testifies that info was accurate
○ Witness has forgotten
• Witness must be available and testifying for this exception to apply.
• Can use something written by a third party to refresh the witness’s memory, if the witness adopts it as true. Document does not have to be prepared by the witness.

Question 18

What are “records of a regularly conducted activity” and when are they allowed?

Answer 18

• Business and records.
• Qualified witness or certification to lay foundation
○ Record was made by a person with knowledge,
○ At or near the time,
○ In the course of a regularly conducted activity, and
○ It was the business’s regular practice to make a record.

• Rationale - businesses have strong self interest in keeping accurate records, especially for regularly conducted activities.
  
  • Statement must come from someone within the organization, unless the statement from an outside party falls under another exception.

Question 19

When are public records admitted as an exception to hearsay?

Answer 19

1) Make sure you have a public record.
2) Must satisfy 803(8), not just 803(6)
3) Records of the office’s activities are generally admissible.
4) Observations pursuant to duty are generally admissible.
5) Except matters observed by law enforcement personnel are not admissible against criminal defendant. (biased (Police have an incentive to ensure convictions) and 6th Amendment concerns (right to face accuser))
6) Unless the observation was ministerial.
7) Results of an investigation by any public office are not admissible against a criminal defendant.
8) “Factual findings” resulting from an investigation including opinions and conclusions.
9) Records are not admissible if they lack trustworthiness
10) Statements by third parties require a separate hearsay exception.

Question 20

What are the five types of unavailability for a witness?

Answer 20

1) Privilege
2) Refusal to Testify
3) Lack of Memory
4) Death or Illness
5) Cannot be Found or Brought to Court
Rule 804

Question 21

When is former testimony allowed under Rule 804?

Answer 21

• Declarant is unavailable
  
  • Prior statement was given at a trial, hearing, or deposition,
  • Opponent [or predecessor in interest for a civil trial] had opportunity to develop testimony
  • Opponent had similar motive to develop testimony

Question 22

When is a dying declaration allowed?

Answer 22

• Declarant is unavailable
  
  • Applies only to homicide prosecutions and civil proceedings
  • Declarant must believe death is imminent
  • Statement is made about its cause or circumstances.

Declarant does not have to actually die (for a civil case), must subjectively believe that death is imminent.

Question 23

When is a statement against interest allowed?

Answer 23

• Declarant unavailable
• Statement was against the declarant’s interest
• At the time it was made
• Corroboration for statements against penal interest when offered in criminal case
○ Corroborating circumstances must clearly indicate the statement’s trustworthiness.

Question 24

What are the three types of interest of a declarant?

Answer 24

• Pecuniary or propriety interest
• Civil or criminal liability
• Render invalid a claim

Types of statements that no reasonable person would have made unless it were true.

Question 25

What happens when a declarant makes a statement indicating liability of himself and a third party?

Answer 25

cannot be used against the third party. Will be difficult to introduce if working with co-defendants. Would want to split the trial in that case.

Question 26

What are six factors used by the court to evaluate trustworthiness of a statement against interest in corroborating circumstances (for criminal cases)?

Answer 26

1) Whether the declarant had pled guilty before making the statement or was still exposed to prosecution,
2) The declarant’s motive in making the statement and whether there was a reason for him to lie,
3) Whether the declarant repeated the statement and did so consistently,
4) The party or parties to whom the statement was made,
5) The relationship of the declarant with the accused, and
6) The nature and strength of independent evidence relevant to the conduct in question.

Question 27

When is a statement offered against a party that wrongfully caused the declarant’s unavailability allowed? (forfeiture)

Answer 27

1. Declarant unavailable
2. Other party engaged or acquiesced in wrongdoing.
3. Intended to cause unavailability.
4. Wrongdoing caused unavailability.

Tricky spots:
• Persuasion and begging aren’t wrongdoing
• Opposing party must specifically intend to make declarant unavailable
• Courts define acquiescence broadly.

Government must prove wrongdoing by a preponderance of the evidence.

Question 28

When is a statement by an opposing party allowed?

Answer 28

Statement is offered against an opposing party and:
• Was made by the party in an individual or representative capacity;
• Is one the party manifested it adopted or believed to be true;
• Was made by a person whom the party authorized to make a statement on the subject;
• Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.

Two limits:
• Declarant must be a party. Does not include a victim in criminal prosecution (State is the party, not the victim).
• Statement must be offered against the party/declarant

Most used hearsay exception.

Also applies in civil cases and includes statements that party makes to anyone (don’t say ANYTHING to ANYONE).

Question 29

When there are co-defendants, can one co-defendant introduce a statement by the other co-defendant if it is against that defendant’s interest?

Answer 29

Courts have differed on this.

Question 30

If there are multiple parties, and one party makes a statement that implicates themselves and another defendant, is that statement admissible.

Answer 30

Admissible against the defendant who made the statement, but must be redacted against the other defendant.

Exception if the other party “adopts” the statement (includes by agents or authorized speakers). Adoption can happen by silence if a reasonable person would have spoken up.

Question 31

When is a statement of a coconspirator allowed and what is the process for getting in into evidence?

Answer 31

tatement is offered against an opposing party and:
• Was made by the party’s coconspirator during and in furtherance of the conspiracy.

Conspiracy ends upon arrest.

Courts consider any joint-venture to be a conspiracy (broad definition).
• Court must first make a preliminary determination of whether there was a conspiracy.
• Statement itself cannot be sole evidence of a conspiracy, must be some outside evidence suggesting the conspiracy.

Question 32

What is the residual exception to hearsay?

Answer 32

Gives judges the flexibility to admit hearsay that falls outside the standing exceptions as long as the evidence has sufficient trustworthiness and is the best available way to prove a needed fact.
• Very rarely used. Be careful to not overuse on an exam.

Question 33

When is a hearsay statement is not excluded by the rule against hearsay even if not specifically covered by an exception in Rule 803 or 804 (residual exception)?

Answer 33

The statement has equivalent circumstantial guarantees of trustworthiness,

It is offered for the truth of the matter,

It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts,

Admitting it will best serve the purposes of these rules and the interests of justice.

• Statement is only admissible if the proponent gives the adverse party reasonable notice of the intent to offer the statement.

Question 34

What is the Sixth Amendment concern in regards to hearsay?

Answer 34

• Criminal defendants have the right “to be confronted with the witnesses against him.” Intended to prevent the use of some hearsay in criminal cases.
○ Confronted means ability to cross-examine
○ Witnesses - people who give “testimonial” evidence against the defendant

Question 35

What are the 5 principles of the Sixth amendment?

Answer 35

• All evidence must satisfy FRE
  
  • 6th applied only to evidence against the accused
  • If a statement is non- testimonial, it satisfies the Sixth Amendment
  • If a statement is testimonial, the accused must have a chance to cross-examine the declarant.
  • If the accused can’t examine at trial, then the prosecutor must establish unavailability and prior opportunity to cross examine.

Question 36

When is a statement testimonial?

Answer 36

a solemn declaration or affirmation made for the purpose of establishing or proving some fact.

* Formal proceeding, government involvement, and statement made to prove a fact related to a crime (must meet all 3).
* Made under circumstances which would lead to an objective witness reasonably to believe that the statement would be available for use at a later trial (usually made during a formal investigation).
* Have the primary purpose of creating an out-of-court substitute for trial testimony.
* If non-testimonial, then no cross-examination is required.
* If the statement is not hearsay, then it is not testimonial and there are no 6th Amendment concerns.