HEARSAY

Question 1

HEARSAY

Answer 1

1) Hearsay
2) Valid Non-Hearsay Uses of Out-of-Court Statements
3) Hearsay Exemptions

Question 2

Hearsay

Answer 2

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, it is generally inadmissible, subject to exceptions or exemptions.

A statment is an oral or written assertion, or nonverbal conduct intended as an assertion. Non-human assertions are NOT statements (e.g. test results, radar gun reading, dog barking)

Note: A witness’s OWN previous out-of-court statement can be hearsay, thus an answer that a statement is “not hearsay because it’s W’s own statement” is incorrect

CA: Hearsay rules are exempt from Prop 8. Thus, in a criminal case, hearsay is inadmissible unless it falls within exception.

Question 3

Valid Non-Hearsay Uses of Out-of-Court Statements

Answer 3

Out-of-court statements are NOT hearsay if they are offered to prove anything other than the truth of the matter they assert.

Common non-hearsay uses of out-of-court statements include:
1) Statements of independent legal significance: Statements containing LEGALLY operative words, such that the statement itself is a legal factor in the case. Common with defamation, K, adverse possession cases
E.g. In a K dispute, A testifies that B told him it was a “done deal”

2) Statements offered to show their effect on the listener
E.g. Comparative negligee claim–Statement by third party wanting P of the injury-causing condition

3) Statements offered to show speaker’s knowledge
E.g. D charged with conspiracy, claims he didn’t know about the crime; an out-of-court statement indicating D had been told about specifics of the crime will be admissible, indicating he knew it was being planned

4) Statements offered to show state of mind
E.g. Statement by D before committing a crime indicating he might have been insane

Question 4

Hearsay Exemptions

Answer 4

Hearsay EXEMPTIONS are deemed “non-hearsay” and thus admissible. There are 4 exemptions:
1) Admission–Out-of-court statements by a party are admissible if offered against that party
a. Judicial Admissions: Made in pleading or testimony
b. Adoptive Admissions: Acquiescence in another’s
statement
* Silence CAN be an admission if:
(1) Party heard, understood, and was capable of
responding to a statement, AND
(2) A reasonable person in the party’s position would
have responded
c. Vicarious Admissions: Made by agent or employee
d. Co-Consiprator Admissions: Co-conspirator’s
statements are admissible against D if made in
furtherance of the conspiracy

2) Prior Inconsistent Statement Given Under Oath
3) Prior Consistent Statement–If offered to rebut a charge of fabrication, improper bias, or improper motive
4) Prior Statements of Identification–E.g. “the red Honda just hit and fled the scene!”