Hearsay

Question 1

Two part definition of Hearsay

Answer 1

a. Out of court statement of a person (oral or written)
i. Doesn’t apply to machines (what clock says about time) or to animals (drug sniffing dog barked)
AND
b. Offered to prove the truth of the matter asserted
c. Hearsay rule: inadmissible unles an exception or exclusion applies
d. Rationale: credibility of the declarant at the time the statement was made was not tested through CX in the presence of the fact-finder.

Question 2

Non-hearsay statements

Answer 2

a. Some out of court statements may LOOK like hearsay but are not if not offered to prove truth of matter asserted.
b. May be relevant just because by virtue of being spoken or written, and evaluation of credibility doesn’t matter.

d. If statement was spoken, can CX the witness.
e. If written, writing can e bexamined.

f. For ex: π died, π estate says pain and suffering. ∆ says π died instantly. witness says that π said “∆’s car ran the red light”
i. This isn’t offered for proof of statement
ii. Offered to prove that π was alive after the accident

Question 3

Principal categories of non-hearsay purposes

Answer 3

a. Verbal Acts (legally operative words): where substantive law attaches rights and obligations to certain spoken words.
i. For ex. words of acceptance of a k
ii. Terms of patent or copyright, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguious acts (like ∆ is chaged with theft of car, and D testifies that owner of car said ∆ could have car for weekend).
iii. For example: words of fraud
1. Parol evidence question. When considering whether to bring in parol evidence, do not really have to worry about hearsay, because the words spoken usually have legal operation, because they are fraudulent or induced reliance or something like that.

b. To show effect on person who heard or read the statement. – if a person hears someone else’s statements, may be relevant
i. to put listener on notice
ii. or to show that listener had warning, or
iii. to create fear, or
iv. to give listener a motive or probable cause to do something without regard to whether the statement is true
v. BECAUSE DOESN’T DEPEND ON THE TRUTH OF THE STATEMENT
vi. For ex.: witness saying that he heard someone tell the supermarket manager that there was broken jar of salsa on the floor, Because not offered to prove there really was a broke jar of salsa. . It was instead being used to prove the fact that the supermarket was on notice.
vii. For ex: ∆ charged with murdering husband. To prove motive, can we introduce anonymous note to ∆ that was found in her possession at the time of arrest that husband was having an affair.
1. Admissible, doesn’t matter if it’s true about the affair. Enough that the accusation was made.

c. Circumstantial evidence of speaker’s state of mind
i. For ex: ∆ defense is insanity. Can he introduce evidence that someone heard ∆ say “I am elvis Presley its good to be back from the dead.”
1. Truth of statement doesn’t matter.
ii. For ex: someone giving false alibi as consciousness of guilt. Asking question may imply lack of knowledge

Question 4

Prior statements of trial witness

Answer 4

b. A WITNESS’ OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSABLE unless an exception applies.

c. Three exclusions (non-hearsay) –> Admissible for their truth, if witness is currently subject to cross-examination AND
i. witness prior statement of identification of a person (prior lineup e.g.)
ii. Witness prior inconsistent statement IF oral, under oath, and during formal hearing.
iii. Witness prior consistent statement to rebut a charge of recent fabrication or contention of inconsistency or sensory deficiency

OR offered to impeach??

Question 5

Party admissions AKA statement of opposing party

Answer 5

a. Any statement made by opposing party is admissible for its truth if offered against the opposing party–> non-hearsay.
iii. Doesn’t have to be against X’s interest AT THE TIME.
iv. Party need not have personal knowledge

c. Theory: Rough justice. Anything you’ve said in the past can be used against you. You can explain it, but things you’ve said in past can be used against you in the court.

d. For ex: X charged with income tax evasion. Prosecutor wants to prove X income, and offers into evidence a loan application. X objcts that the application was inflated.
i. But it’s x’s own statement offered against X, so comes in for its truth. Need not be against interest at time made.

1. For ex. wife filing for life insurance, at time she walked in on crime scene she said “husband killed himself.” Doesn’t matter that she had no personal knowledge, it’s against her interest so admissible.

Question 6

Vicarious party admissions

Answer 6

i. Statement by agent / EE is admissible against principal/ ER if statement concerns matter within scope of agency/ employment and is made during the existence of the ER/EE relationship
ii. For ex: driver for trucking company apologizes to someone he crashes into and says “sorry I was reaching for a beer and not looking”→ admissible
iii. For ex: employment discrimination case. Trucker says the office has a policy against hiring women. Inadmissible
1. Because must concern a matter within the scope of his employment.
2. Otherwise, unfair to ER.

Question 7

Adoptive admission

Answer 7

IF a party expressly or impliedly adopts a statement by another person, it is as though the party herself made the statement. Adoption by silence occurs when a party who hears another person’s statement remains silent under circumstances in which a reasonable person would protest if the statement were false.
i. But silence in front of a cop is never an adoption-→everyone has seen law and order and knows you should be quiet in front of cops

Question 8

Co-conspirators statement

Answer 8

i. Admissible if it was made
1. During and
2. In furtherance of the conspiracy

Question 9

Hearsay exceptions

Answer 9

a. These ARE hearsay. They’re out of court statement being offered for the truth of the statement, but there’s some justification regarding the reliability, which excuses the requirement of contemporaneous cross-examination.

b. Forfeiture by wrongdoing
c. Former testimony
d. Statement against interest
e. Dying declaration
f. Excited utterance
g. Present sense impression
h. Present state of mind
i. Declaration of intent
j. Present physical condition
k. Statement for purpose of medical treatment or diagnosis
l. Business records
m. Public records
n. Also, past recollection recorded, learned treatises

Question 10

Which hearsay exceptios do and do not require unavailability

Answer 10

1. Requiring unavailability of declarant: former testimony, statement against interest, dying declaration, statement of personal or family history.
2. Not requiring unavailability of declarant: Excited utterance, present sense impression, present state of mind, declaration of intent, present physical condition, statements for purpose of medical diagnosis or treatment, business records, public records, past recollection recorded, ancient documents, learned treatises, reputation evidence, market reports

Question 11

confrontation clause & what is testimonial

Answer 11

confrontation clause: you have a right as a criminal ∆ to respond to testimony.
What is testimonial?
i. Business records are not testimonial – may be admitted without chance to confront the witness

ii. Sworn affidavits are testimonial – must have chance to confront witness

iii. Forensic lab report is testimonial if its primary purpose is to accuse a targeted individual of criminal conduct
1. Must have chance to cross-examination whoever did the report / lab analysis.

2. BUT a DNA report is nontestimonial if it analyzes a sample of bodily fluid collected from a crime scene for the purpose of developing a DNA profile if no particular person is suspected at the time of the analysis.
   need not have chance to confront

iv. Even if a forensic report is testimonial, no confrontation violation occurs if the prosecutor calls a testifying expert who performed an independent analysis of the data, and the testifying expert only generally refers to the report (i.e. not reading report to jury) without introducing it as an exhibit. Then the report is not being used for a hearsay purose.
1. Remember expert can use hearsay material to show he had a basis for his opinion.

police reports– factual or are they collecting to build a case. if collecting to build a case– testimonial. if to deal w ongoing emergency– not testimonial .

Question 12

Forfeiture hearsay exception

Answer 12

(declarant unavailable due to ∆’s wrongdoing) : any type of hearsay statement is admissible against a ∆ whose wrongdoing made the witness unavailable if the court finds:

i. By a preponderance of the evidence
ii. That the ∆’s wrongdoing was designed to prevent the witness from testifying.
iii. Forfeits both hearsay and 6th amendment objection .
iv. Policy: to discourage witness tampering

Question 13

Former testimony of now-unavalable witness hearsay exception

Answer 13

1) witness unavailable 2) given at former proceeding (GJ is not former proceeding) 3) admitted against a party who on the prior occasion had an opportunity/ motive to CX the witness 4) issue in both proceedings is the same

If the witness is available, however, testimony is allowed for impeachment purposes.

Question 14

Grounds of unavailability

Answer 14

iii. Grounds of unavailability
1. Privilege
2. Absence from jurisdiction
a. i.e witness cannot be found with due diligence or witness is beyond court subpoena power (in Switzerland)
3. illness or death
4. lack of memory
5. stubborn refusal to testify
6. Same grounds of unavailability apply to all exceptions wher unavailability is a requirement

Question 15

Statement against interest hearsay exception

Answer 15

1. declarant must be unavailable (reqs are also higher, no one is in court to explain it away)
2. must be against interest when made
3. personal knowledge is required
4. must involve interest- pecuniary or penal
5. Different from party admission
   a. Must be against interest WHEN MADE
   b. Any person can make a statement against interest
   c. Personal knowledge is required
   d. Declarant must be unavailable.

v. For ex.: Π v. acme trucking – based on Charlie the truck driver’s negligent driving. Trucker was fired. Later trucker told π insurance adjuster that he was driving drunk. But at trial, refused to testify on the ground of self-incrimination. The insurance adjuster may properly testify to Charlies statement as evidence against Acme because the statement is :
1. There’s a statement against interest
a. Pecuniary interest—exposed to tort damages.
b. Against penal interest—exposed to DWI prosecution.
c. He’s unavailable- privilege self-incrimination

2. Qualification in criminal cases: statement against penal interest must be supported by circumstances showing trustworthiness of the statement
   a. For ex :stranger in bar says I’m glad they caught ∆ for the arson I caused. ∆ attorney demonstrate that stranger had not been located despite diligent efforts

i. Must have trustworthiness!!! Something connecting stranger to arson. Something like grudge, seen buying kerosene.

Question 16

Dying declarations hearsay exception

Answer 16

1) only in civil cases or homicide criminal cases 2) made under belief of impending death and 3) declarant unavailable and 4) concerns cause/ circumstances surrounding death.

1. Belief in death must be certain: no hope of survival
   a. “doesn’t look good for me” not enough
   b. “I’m going to get revenge” does not equal belief that victim will die.
2. May still qualify as an excited utterance.

ii. Theory: people tell the truth when dying.
v. Note on confrontation: a dying declaration made to a police officer may be testimonial, but it most likely qualifies as an exception to the confrontation requirement of cross-examination. In dicta, SCOTUS has noted that the admissibility of dying declarations to law enforcement officials was well established when the 6th Amendment was adopted, meaning that dying declarations were intended to be exempt from the confrontation rule.

Question 17

Excited utterance hearsay exception

Answer 17

Must have: 1) startling event 2) statement about that event while declarant is still under the stress fo the excitement
1. For ex “ both cars going 90mph!” after witnessing car crash

iii. Factors to consider
1. Nature of the event– how startling was it
2. Passage of time after witnessing the event. No hard and fast rule. Depends on horribleness of the event.

3. Visual clues –
   a. Exclamatory phrase by declarant “omg, gee”
   b. Excitement oriented words. “shouted, screamed”
   c. Exclamation point

Question 18

Business records hearsay exception

Answer 18

1) made in regular course of business 2) germane to the biz 3) business regularly keeps these records 4) made contemporaneously 5) contents contain either personal knowledge or statement with independent hearsay exception
ii. Theory: business need accurate recordkeeping and accuracy is likely when EEs are under duty to ake such records.

iii. For ex:
1. police officer arriving at scene
a. at arrival measurement of skid marks of 50 ft.
i. admissible as business record.
ii. Prepared contemporaneously (a few days later is OK)
b. But can’t be what another bystander told the police officer about who ran the light
i. Unless bystander’s statement falls under its own independent hearsay exception - Like present sense impression.

iv. Proving business records foundation
1. witness authenticating need not be author of report—can be records custodian or any other knowledgeable person within the business, or
2. Written certification under oath attesting to elements of business records hearsay exception with advance notice to opposing party

Question 19

Public records hearsay exception

Answer 19

i. Records of a public office or agency setting forth
1. The activities of the office or agency (e.g. payroll records) or
2. Matters observed pursuant to a duty imposed by law (e.g. weather bureau records of temp) or
3. Findings of fact or opinion resulting from an investigation authorized by law (e.g. OSHA inspection report on factory safety)
ii. Judgments—certified copy of a judgment is always admissible as proof that such a judgment has been entered
1. Prior criminal conviction—felony is admissible in criminal and civil actions as an exception to hearsay to prove a fact essential to the judgment.
a. In criminal case—may use the judgment for this purpose only against the accused
b. Can be used for impeachment purposes for others
2. Prior criminal acquittal—excluded
3. Judgment in former civil case
a. Inadmissible in subsequent criminal proceeding and generally inadmissible in subsequent civil proceedings

ii. Exclusion – criminal cases
1. police officer reports prepared for prosecutorial purposes are not admissible against the ∆ in a criminal case. Nor is the prosecution in such cases allowed to introduce such reports against the ∆ under the alternative theory of business records.
2. do not want to send people to jail based on a report, we want cops to come testify.

Question 20

Hearsay within hearsay

Answer 20

i. If a hearsay statement is included within anther hearsay statement, the evidence is inadmissible unless each statement falls within a hearsay exception.
1. Exemption is treated like an exception for this rule
ii. Exs: if witness testifies “A told me what B said,” the evidence is inadmissible unless, for ex, A’s statement is an excited utterance in response to B’s excited utterance.
c. For example. A business record containing statements of a 3rd party with no business duty to speak cannot be used to prove the truth of the declarant’s statement unless a hearsay exception applies.

Question 21

impeachment of hearsay declarants

Answer 21

any impeachment method ay be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence.

If the impeachment is a prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waivd.

iv. For ex : ∆ is on trial for murder. In hospital bed, V told nurse, “ I feel ok considering Btried to kill me.” The next day, V told visitor, “ Im going to die, ∆ is the one who tried to kill me”
a. first one isn’t a dying declaration
b. second one is a dying declaration- admissible
2. BUT!! First statment Can still be used as an inconsistent prior statement. Impeaches credibility of V

Question 22

Present sense impression hearsay exception

Answer 22

1. Description of an event made while the event is occurring or immediately hereafter
   a. Dif from excited utterance in that no requirement of startling event.
   b. Few seconds after it concluded.
   c. For ex: V was on phone w mom, and he tells mom I have to go because Hannibal lecter just came in the door. Mom can say why V had to leave the phone
2. Thoery: declarant has no time to fabricate

Question 23

Present state of mind hearsay exception

Answer 23

1. Contemporaneous statement concerning declarants present state of mind, feelings or emotions
2. Theory: contemporaneous statement about matter as to which declarant has uniqu knowledge.
3. For ex: will dispute, everything left to pet. Testator told friend “I do not love my family anymore.”
   a. Admissible

Question 24

Declaration of intent hearsay exception

Answer 24

Declaration of intent

1. Statement of declarant’s intent to do something in the future, including intent to do something in future with someone else.
2. Theory: contemporaneous statement about matter as to which declarant has unique knowledge.
3. For ex: life insurance company doesn’t want to pay because they say that π’s family member left note saying “im going to end it all next week.”
   a. Fits within exception

Question 25

present physical condition hearsay exception

Answer 25

1. Statement made to anyone about declarant’s current physical condition.
2. Theory: contemporaneous statement about matter as to which declarant has unique knowledge.
3. For ex.: π arm broken in accident, suing for damages for pain and suffering. Π wants neighbor to also testify that π told neighbor her arm hurt a few months ago
   a. Admissible—present physical condition.

Question 26

Statement made for purpose of obtaining medical treatment or diagnosis hearsay exception

Answer 26

1. Statement made to anyone (usually to medical personnel) for the purpose of obtaining med treatment or diagnosis, including diagnosis for expert testimony if it concerns the declarant’s:
   a. Present symptoms or
   b. past symptoms or
   c. general cause of the condition
   i. not including statements describing details of liability or ID of tortfeasors
2. unless the identity is of an abuser in a domestic or child abuse case
3. because here the ID of abuser affects the type of psych treatment given.
4. Theory: an injured person has a motive to be honest to get medical help
5. This exception doesn’t include oral statements made by a DR to patient
6. For ex: π told dr months ago that pain hurts, ive been losing sleep and it started when she fell down stairs
   a. Allowed
7. NOT allowed to say it was because of the stairs with no treads at ∆’s store
8. Doesn’t matter if you only retained the dr as an expert witness

Question 27

Hearsay flowchart

Answer 27

a. Is the evidence a statement for the prupsoes of the hearsay rule (like not oral or written statement or by an inanimate object or drug-sniffing dog)
i. If not → Admit, not hearsay

b. Is the statement offered to prove the truth of the matter asserted? Like is it legally operative act, or used to show effect on listener or reader like notice or knowledge, or is it offered to show the what the declarant believed/ thought
i. If not offered to prove the truth of the matter, admit, not hearsay

c. Is the statement a prior inconsistent statement given under penalty of perjury
i. If yes, admit for its substance or to impeach, NOT hearsay

d. Is the statement a prior consistent statement 1) offered to rebut a charge that the witness is lying because of motive or 2) offered to rehab a witness who has been impeached (sensory deprivation, mistake etc)
i. If yes, admissible, not hearsay

e. Is the statement one of identification of a person someone witness saw earlier
i. If yes–> admissible nonhearsay

f. Is the statement made or adopted by a party to the action or by 1) someone authorized to speak on her behalf, 2) her agent, 3) her partner, 4) her coconspirator in furtherance of conspiracy, or 4) privy in title (state courts)
i. If yes→ admit, not hearsay

g. None of the above
i. Hearsay, inadmissible unless one of the hearsay exceptions applies

ii. Hearsay exceptions
1. Requiring unavailability of declarant: former testimony, statement against interest, dying declaration, statement of personal or family history.
2. Not requiring unavailability of declarant: Excited utterance, present sense impression, present state of mind, declaration of intent, present physical condition, statements for purpose of medical diagnosis or treatment, business records, public records, past recollection recorded, ancient documents, learned treatises, reputation evidence, market reports
h. Watch out for hearsay within hearsay

Question 28

Statement against interest vs. party admission

Answer 28

i. Basically, statement against interest different from the party admission because there must be unavailability of the declarant. Also, for this reason, the requirements are higher, because the person isn’t there in court to explain it away.
1. i.e must be against interest when made
2. personal knowledge is required