Hearsay Flashcards
Rule 801(a)-(c)
(a) Statement. “Statement means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) The declarant does not make while testifying at the current trial or hearing; and
(2) A party offers in evidence to prove the truth of the matter asserted in the statement.
Rule 802
Hearsay is not admissible unless any of the following provides otherwise:
• A federal statute;
• These rules; or
• Other rules prescribed by the Supreme Court.
Rule 801(d)(1)(A)
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
Rule 801(d)(2)
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
1) An Opposing Party’s Statement. The statement if offered against an opposing party and:
A) Was made by the party in an individual or representative capacity;
B) Is one the party manifested that it adopted or believed to be true;
C) Was made by a person whom the party authorized to make a statement on the subject;
D) Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
E) Was made by the party’s coconspirator during and in furtherance of the conspiracy.
Four Sources of Witness Unreliability
- Perception: The witness could have not seen things right in the first place.
- Memory: The witness may not correctly remember what she saw.
- Narration: The witness may say the wrong thing, or describe what she saw poorly.
- Sincerity: The witness could be lying.
Three Testimonial Guarantees of Reliability
- Oath: Witness must swear to tell the truth.
- Demeanor: We can scrutinize faces and mannerisms while the witness testifies.
- Cross-Examination: The opposing lawyer can scrutinize witness and probe for deficiencies in any of the capacities.
Common non-hearsay uses of out-of-court statements
(1) prove the statement’s impact on someone who heard it
i. The probativeness value of the statement is based completely on the person hearing the contents of the statement, not that the statement was true.
ii. Example: D claiming self-defense, claims someone told him to watch out for V the assertion that V is somehow dangerous doesn’t matter if it’s true or not to prove that D was scared of V.
(2) prove a legal right or duty triggered by the statement (verbal acts)
i. When the statement creates a legal relationship or consequence.
ii. Example: when a threat is the basis of the claim; to establish the existence of a contract.
(3) to impeach the declarant’s later, in-court testimony.
i. The truth of the prior inconsistent statement is irrelevant – all that matters is that the witness previously said the opposite of what he/she is saying now.
(4) Nonassertive Words
i. Involuntary expressions – “Ouch!” not hearsay to prove declarant was in pain
(5) To Prove Something Other Than What They Assert
i. Wright v. Tatham (1837) – D in a will contest brings letters written to decedent to demonstrate that he was competent at the time of writing his will. Writers were not intending to assert the decedent’s competence through the letters, so not hearsay.
(6) Assertions Offered as Circumstantial Proof of Knowledge
i. Bridges v. State (Wisc. 1945) – D charged with molestation, claims he had never met the girl. Prosecution enters girl’s description of D’s room used to demonstrate that she was there.
ii. Ct: Assertion doesn’t matter because she could not possibly have been lying. Prosecutor proving her knowledge, not her claim of knowledge.
United States v. Bourjaily
PO’s CI set up a drug deal in a parking lot. CI talked to Lonardo and “friend” on the phone to set up the meeting. Both were arrested upon the transaction. TC allowed prosecution to bring the statements made by Lonardo about his “friend” who was D.
To decide if conspiracy existed, that’s a question under 104(a). Judge decides if beyond a preponderance of the evidence - can use all facts including bootstrapping.
Requirements of conspiracy:
(1) conspiracy existed at the time of the statement being made
(2) conspiracy included both declarant and party statement is being used against
(3) declarant spoke during the course of and in furtherance of the conspiracy
Rule 801(d)(1)(B)
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
B) is consistent with the declarant’s testimony and is offered:
i. to rebut an express or implied charge that the declarant recently fabricated it or acted from an improper influence or motive in so testifying; or
ii. to rehabilitate the declarant’s credibility as a witness when attacked on another ground
Rule 801(d)(1)(C)
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
C) identifies a person as someone the declarant perceived earlier.
Rule 613
Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only 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, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Rule 804(a)
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
1) Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
2) Refuses to testify abut the subject matter despite a court order to do so;
3) Testifies to not remembering the subject matter;
4) Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, hysical illness, or mental illness; or
5) Is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
A) The declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
B) The declarant’s attendance or testimony, the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
Liang
Dying words are actually just delirious, not truthful. Some courts say you can bring in expert to prove this, others say to make a 403 argument
Rule 806
Attacking and Supporting the Declarant’s Credibility
When a hearsay statement–or a statement described in Rule 801(d)(2)(C), (D), or (E)–has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
