Hearsay Flashcards
Checklist to Hearsay (3)
- Is the statement hearsay or non-hearsay?
- Identify each out of court statement
- Identify how the statement is logically relevant
Hearsay Definition (Common Law and FRE/CA)
Common law: An out of court statement used to prove the truth of the statement.
FRE/CA: 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.
Confrontation Clause and Hearsay
Under Crawford, the Confrontation Clause applies only to testimonial hearsay in a criminal case. A hearsay statement is not admissible unless 1) the declarant testifies at trial and defense counsel has the opportunity to cross examine the declarant about the statement; or; the declarant is unavailable and the defense counsel had a prior opportunity to cross-examine the declarant about the statement.
Twelve Hearsay Exclusions
- Effect upon the listener
- Knowledge of fact or condition
- Words of independent legal significant
- Words which accompany and explain legally ambiguous conduct (both elements must be present)
- Knowledge of the declarant used to show something other than the thing known.
- State of mind
- Non-Assertive conduct
- Silence or absence of complaint
- Negative results of inquiries
- Words offered to identify declarant, time, place or relationship
- Prior inconsistent and consistent statements of a witness.
- Non-human evidence
Two elements for State of Mind Exlusion
- Declarant’s state of mind must be in issue.
2. Declarant’s state of mind must be indirectly expressed
Federal Exemptions to Hearsay
PAPP
- Prior inconsistent statements
2 Admissions of a party opponent - Prior consistent statements
- Prior identification
Prior Inconsistent Statement Rules (FRE and CA)
FRE: PIS must have been made under penalty of perjury at a trial, hearing or other proceeding or in a deposition and declarant testifies at trial and is subject to cross ex concerning the statement.
CA: No requirement that the prior statement be given under oath occasion now being offered against that party. But the witness must be given the opportunity to explain or deny the statement either while on the stand or if the witness has not been excused from giving further testimony.
Admission of Party Opponent
A statement made by a party on a prior occasion now being offered against that party.
Prior Consistent Statements (FRE and CA)
FRE: Permits use as substantive evidence even if not given under oath but only if offered at trial to rebut a charge of recent fabrication.
CA: Allows hearsay exception if the statement is consistent with the declarant’s testimony and the statement was made before the inconsistent statement or an express or implied charge has been made that the witness’ testimony is recently fabricated or is influenced by bias or other improper motive and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.
Prior Identification (FRE and CA)
A statement by declarant who testifies at trial and is subject to cross ex about the statement and the statement identifies a person as someone the declarant perceived earlier.
FRE: Permits its use as substantive evidence even if not made under oath.
CA: Allows hearsay exception if 1) the statement was made when the crime or other occurrence was fresh in the witness’ memory; and 2) the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.
Twenty One Exceptions to Hearsay
These are grouped in order of how they usually appear on an exam. Some exceptions require the declarant to be Unavailable (U) or Available (A) at trial.
- Dying Declaration (U)
- Excited Utterance
- Present Sense Impression
- Admissions
- Declaration against Interest (U)
- State of Mind
- State of Body
- Former Testimony (U)
- Past Recollection Recorded (A)
- Business Record
- Official Record
- Judgments
- Ancient Documents
- Learned Treatises
- Family Pedigree (U)
- Reputation Evidence
- Prior Identification (A)
- Prior Inconsistent Statements (A)
- Prior Consistent Statements (A)
- Federal Catchall
- Threat of Infliction of Injury - CA
Two Rules for Multiple Hearsay
One statement repeats or incorporates other hearsay statements; a chain of out of court statements.
- Each out of court statement in the chain must be admissible.
- If one of the statements is inadmissible, then both statements must be excluded unless the remaining statement has logical relevance standing alone.
Four Elements of Statement of Belief of Impending Death (FRE and CA)
Majority: Admissible only in criminal homicide cases
FRE: Admissible in civil actions but limited to homicide in criminal actions
- Declarant is unavailable (does not have to be dead under FRE)
- Declarant believes death is imminent and certain
- Statement relates to cause of death
- Personal Knowledge
CA: Dying Declaration: Admissible in civil actions and all criminal actions
- Declarant must be dead
Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.
Four Elements of Excited Utterance (FRE and CA)
FRE:
- Startling Event
- Statement while declarant under the stress of the exciting event
- Statement relates to startling event
- Personal knowledge
CA:
Spontaneous statement: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: 1) purports to narrate, describe, or explain an act, condition, or event perceived by the declarant and 2) was made spontaneously while the declarant was under the stress of excitement caused by such perception.
Four Elements of Present Sense Impression (FRE and CA)
FRE:
- Statement must be made contemporaneously with event or condition;
- Statement uttered immediately upon perception;
- Statement describes event
- Personal knowledge
CA: Has no present sense impression rule; Rather rule is
Contemporaneous Statement Exception
Evidence of a statement is not made inadmissible by the hearsay rule if the statement 1) is offered to explain, qualify, or make understandable conduct of the declarant; and 2) was made while the declarant was engaged in such conduct.