Hearsay

Question 1

What is hearsay in general?

Answer 1

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing. In other words, an out-of-court statement.

Question 2

When is hearsay admissible?

Answer 2

Hearsay is generally inadmissible unless it falls within an exception or exlusion.

Question 3

In hearsay, what qualifies as the declarant?

Answer 3

The declarant must be a person. Evidence generated by a machine or an animal is not hearsay.

NO:

1. Dog’s bark
2. time stamp on a fax
3. printout of results of a computerized telephone tracing equipment
4. Raw data such as blood alcohol level generated by a diagnostic machine

YES:

a witness’s prior statement may be hearsay, and if hearsay, the witness may be prohibited from testifying as to her own statement unless an exception or exclusion applies.

Question 4

In hearsay, what counts as an assertion or statement?

Answer 4

A statement is a person’s oral or written assertion, or it may be nonverbal conduct intended as an assertion. for example, a nod yes.

NO: nonassertive conduct, like a pilot flying a plane, is not hearsay when the evidence is offered as evidence of the plane’s safety.

Question 5

What kind of statements are hearsay?

Answer 5

statements offered to prove the truth of the matter asserted. Statements offered to prove something other that the truth of the matter asserted are not hearsay.

EXAM:note that a statement that is not hearsay is not automatically admissible.

Question 6

What are the elements of hearsay?

Answer 6

1. Declarant
2. Statement
3. Offered to prove the truth of the matter asserted.

Question 7

What is the legally operative facts doctrine?

Answer 7

A statement offered to prove that the statement was made, regardless of the truth, is NOT hearsay

Question 8

What are the 4 situations where an out-of-court statement are NOT hearsay?

Answer 8

1. Legally Operative Facts
2. Effect on recipient
3. State of Mind
4. Impeachment

Question 9

What is the effect on recipient doctrine?

Answer 9

A statement offered to show the effect on the person who heard it is not hearsay

EX: In a negligence action, the D’s statement to the P that the sidewalk in front of the D’s house was icy may not be admissible to show that the P had notice of the danger but not to show that the sidewalk was actually icy

Question 10

What is the state of mind doctrine in hearsay?

Answer 10

A statement offered as circumstantial evidence of the declarant’s mental state is not hearsay

EX: a testator’s statement, ‘I am the queen of England’ is not admissible to show the truth, but is admissible to prove that the testator is not of sound mind.

Question 11

What is the impeachment doctrine of hearsay?

Answer 11

A statement offered solely to impeach a witness is not being introduced for its truth and therefore is not hearsay.

Question 12

What happens in cases of multiple hearsay?

Answer 12

A statement that combines hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception.

EX: A doctor’s note by the physician saying that the P told the dr. the injury was made by a baseball bat is admissible b/c it was a statement made to obtain medical treatment within a business record.

Question 13

What is not hearsay?

Answer 13

The following types of statements, which would otherwise qualify as hearsay, are expressly defined as nonhearsay

1. Prior statements
   - Inconsistent
   - consistent
   - statement of identification
2. Opposing Party’s Statement
   - judicial admission
   - adoptive admission
   - vicarious statements

Question 14

What are prior statements generally in the context of hearsay?

Answer 14

The federal rules identify three types of prior statements that are not hearsay. In all three cases, the witness who made the statement must testify at the present trial or hearing and be subject to cross examination concerning the statement in order for it to be admissible.

Question 15

What are prior inconsistent statements in the context of hearsay?

Answer 15

A prior inconsistent statement made under penalty of perjury at a trial, hearing or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility and as substantive evidence. statements made is a prior legal action that is unrelated to the current action may be admitted under the rule.

Question 16

What if a prior inconsistent statement was not made under penalty of perjury?

Answer 16

An inconsistent statement that was not made under penalty of perjury may be admissible to impeach a witness but is not admissible under this provision as substantive evidence.

Question 17

What is the prior inconsistent statement doctrine of hearsay?

Answer 17

A prior inconsistent statement, whether made under oath or not, may be admissible to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying. Such a statement is admissible only if it was made before the declarant had reason to fabricate or the improper influence or motive arose.

Question 18

What is the prior statement of identification of doctrine of hearsay?

Answer 18

A previous out-of-court ID of a person after perceiving that person (such as a line-up or photo array) is not hearsay and may be admissible as substantive evidence. Even if the witness has no memory, it’s still admissible because they are subject to cross.

NOTE: beware of fact patterns involving prior out of court ID by a witness who is not testifying and therefore not subject to cross. The rule cannot apply, for instance if the witness is dead or otherwise unavailable to testify.

Question 19

When is an opposing party’s statement not hearsay?

Answer 19

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. The statement may have been made by the party in his individual or representative capacity (e.g. trustee). This type of statement traditionally was know as an admission of a party-opponent.

Applies, even when it is not based on personal knowledge, or is an opinion, even if it is normally beyond the scope of a lay witness opinion.

Question 20

What is the difference between the opposing party statement and the statement against interest exception?

Answer 20

Unlike with the statement against interest hearsay exception, an opposing party’s statement need not have been against he party’s interest at the time the that it was made.

Question 21

What is the judicial admission hearsay doctrine?

Answer 21

An admission made during the discovery process or a stipulation otherwise made during a proceeding is conclusive evidence, as is a statement made in a pleading, unless amended. Otherwise although a statement in a pleading or an admission or stipulation made in another proceeding is usually admissible, it may generally be rebutted.

NOTE: a withdrawn guilty plea is generally not admissible in a subsequent civil or criminal proceeding.

Question 22

What is the adoptive admission doctrine of hearsay?

Answer 22

An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if:

1. The person was present and heard and understood the statement;
2. the person had the ability and opportunity to deny the statement, and
3. a reasonable person similarly situated would have denied the statement.

Post-arrest silence by a D who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person (such as a police officer)q

Question 23

What are the vicarious statements doctrine of hearsay?

Answer 23

Generally, a statement made by one person may be imputed to another based on the relationship between them. In determining whether a statement constitutes an opposing party’s statement, the statement is considered, but the statement itself cannot establish the necessary relationship between the parties.

Question 24

Vicarious statement by an employee or agent…

Answer 24

A statement made by party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship.

Question 25

Vicarious statement by an authorized speaker

Answer 25

A statement about a subject that is made by a person who is authorized by a party to make a statement on the subject constitutes an opposing party’s statement.

Question 26

Vicarious statement by co-conspirators

Answer 26

Although a statement made by one co-party is not admissible against another co-party based solely on their status as co-parties, as statement made by co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party’s statement against other co-conspirators. A statement made by a co-conspirator after being arrested is not admissible, since it was not made during the conspiracy,

Question 27

What are the categories of the hearsay exceptions?

Answer 27

1. Declarant unavailable as witness
2. Declarant’s availability as a witness immaterial
3. Residual exception

Question 28

What are the hearsay exceptions that apply only if the declarant is unavailable as a witness:

Answer 28

1. Former testimony
2. Dying declaration
3. Statement against interest
4. Statement of personal or family history
5. Statement against party that caused declarant’s unavailabiility

Question 29

When is a declarant unavailable?

Answer 29

An unavailable declarant is a person who:

1. Is exempt on the grounds of privilege
2. Refuses to testify despite a court order to do so
3. lacks memory of the subject matter of the statement
4. Is unable to testify due to death, infirmity, or physical or mental disability , OR
5. Is absent and cannot be subpoenaed or otherwise made to be present.

BUT: a declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial.

Question 30

When a declarant is unavailable as a witness, when is former testimony admissible because of necessity?

Answer 30

Testimony that is given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or, in a civil case, a party’s predecessor-in-interest) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination. This exception apples whether the testimony was given during the current proceeding or during a different one, but the witness who gave the testimony must now be unavailable.

NOTE: Grand jury testimony generally does not fall within the former testimony exception, but it may be admissible non hearsay evidence as a prior inconsistent statement.

Question 31

When an out-of-court statement is a dying declaration, when is it excepted from the hearsay rules?

Answer 31

A statement qualifies as a dying declaration if:

1. The declarant believes that her death is imminent, and
2. the statement pertains to the cause or circumstances of her death.

Under this exception to the hearsay rule, although the declarant must be unavailable, the declarant need not actually have died in order for the statement to avoid exclusion as hearsay. ONLY APPLES TO HOMICIDE and civil cases.

Question 32

When is a statement against interest excluded from the hearsay rules?

Answer 32

A statement made by a declarant who is unavailable to testify is not excluded as a hearsay if the statement:

1. was against the declarant’s interest at the time it was made; and
2. Would not have been made by a reasonable person unless he believed it to be true

Question 33

What kind of statements qualify as a statement against interest?

Answer 33

The statement must have been against the declarant’s proprietary or pecuniary interest, have invalidated the declarant’s claim against someone, or have exposed the declarant to civil or criminal liability. A statement that would subject the declarant to criminal liability is not admissible unless the corroborating circumstances clearly indicate the trustworthiness of the statement.

Compared to an opposing party’s statement: this one must be made by a non-party, the declaration must be unavailable, and the statement must have been against the declarant’s interest at the time.

Question 34

What is the statement of personal or family history hearsay exception?

Answer 34

A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, familiar relationship, or other similar fact of personal or family history is not excluded as hearsay.

Question 35

What is the statement against the party that caused declarant’s unavailability hearsay exception?

Answer 35

Formerly known as the ‘forfeiture against wrongdoing’ exception, a statement offered against a party that wrongfully caused the declarant’s unavailability is not excluded as hearsay. Under this exception, the wrongful party forfeits the right to object to the admission of the declarant’s statement as hearsay. The wrongdoing, which need not be criminal, may be accomplished by a deliberate act or by acquiescing to another’s act, but must be done with the intent of preventing the witness from testifying. Tis exception applies to all parties, including the government. (beware of the confrontation clause)

Question 36

What are the hearsay exceptions that aren’t dependent upon the declarant’s unavailability as a witness?

Answer 36

1. Present sense impression
2. Excited utterance
3. Statement of mental, emotional or physical condition.
4. Statement made for medical diagnosis or treatment
5. Recorded recollection
6. records of regularly conducted activity (business records)
7. Business records
8. Learned Treatises
9. Judgment of previous conviction
10. Other

Question 37

What is the residual hearsay exception?

Answer 37

There is a ‘catch-all’ exception for a statement that is not otherwise covered by the Fed Rules. A hearsay statement may not be admissible under this exception if:

1. The statement has equivalent circumstantial guarantees of trustworthiness,
2. is offered as evidence of a material fact,
3. Is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain, and
4. admission will best serve the purposes of the federal rules and the interests of justice.

In order to take advantage of this exception, the proponent must give an adverse party reasonable notice before the trial or hearing of the intent to offer the statement as well as its particulars, including the declarant’s name and address.

Question 38

What is the present sense impression hearsay exception?

Answer 38

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay

Question 39

What is Res Gestae?

Answer 39

A common-law hearsay exception labeled res gestae (things done) existed for a statement that was precipitated by an event or was about a contemporaneous contemporaneous condition–no federal exception, but instead have other related ones

Question 40

What is the excited utterance hearsay exception?

Answer 40

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event but the declarant need not be a participant in the event (so they can be a bystander).

Question 41

What is the difference between excited utterance and present sense impression distinguished?

Answer 41

A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

EX: A looks out the window and says: it sure is raining hard tonight. She has made a statement of present sense impression, which is admissible to prove that it rained on the night in question.

EX: B discovers that he has a winning lottery ticket and shouts , I just won a million dollars! He has made an excited utterance, which is admissible to prove he won the money.

There is sometimes overlap…

Question 42

What is the statement of mental, emotional, or physical condition?

Answer 42

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay.

There are two types:

1. State of Mind
2. Physical condition

Question 43

What is the state of mind hearsay exception?

Answer 43

A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. A statement of a memory or past belief is inadmissible hearsay when used to prove the fact remembered or believed, unless the statement relates to the validity or terms of the declarant’s will.

NOTE: don’t confuse the state of mind hearsay exception with circumstantial evidence of the declarant’s state of mind, which is not hearsay. To fall under the hearsay exception, the statement must be offered to prove that the declarant acted in accordance with his stated intent.

Question 44

What is the physical condition aspect of statement of mental, emotional, or physical condition hearsay exception?

Answer 44

When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause.

In most states, a statement made by a patient to a doctor relating to a past condition is not admissible under this exception. Under the fed rules, such a statement is admissible under the hearsay exception for the statements for purposes of medical diagnosis or treatment.

Question 45

What is the statement made for medical diagnosis or treatment hearsay exception generally?

Answer 45

A statement describing medical history or past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. (but may be inadmissible if falls within physician patient privilege)

Question 46

Regarding the statement made for medical diagnosis or treatment, what is the effect if the statement is made to a person other than a physician?

Answer 46

the statement need not be made to a physician to fall under this exception. Statements to other medical personnel, including hospital attendants and ambulance drivers, or even to family members, may be included.

Question 47

Regarding the statement made for medical diagnosis or treatment, what is the effect if the statement is made to a non-treating physician?

Answer 47

Statements made to a physician consulted only for the purpose of enabling the physician to testify at trial are admissible.

Question 48

Regarding the statement made for medical diagnosis or treatment, what is the effect if the statement is made by a person other than the patient?

Answer 48

Under this hearsay exception, the statement need not necessarily be made by the patient, so long as it is made for the purpose of medical diagnosis or treatment. The relationship between the declarant and the patient usually determines admissibility–the closer the relationship, the stronger the motive to tell the truth, and, as such, the more presumably reliable the statement. The court must assess the probative value of the pursuant to Rule 403, weighing that value against the risk of prejudice, confusion, or waste of time.

Question 49

What is the recorded recollection hearsay exception?

Answer 49

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established:

1. The record is on a matter that the witness once knew about;
2. the record was made or adopted by the witness when the matter was fresh in the witness’s memory,
3. The record accurately reflects the witness’s knowledge, and
4. The witness state that she cannot recall the event well enough to testify fully and accurately, even after consulting record on the stand.

Under this exception, the record, if admitted, may be read into evidence, but it may be received as an exhibit only if offered by an adverse party.

Question 50

What is the difference between recorded recollection and present recollection refreshed?

Answer 50

An item, which need not be a writing, used to refresh a witness’s recollection is not admitted into evidence, so there is no hearsay problem.

Question 51

What is the business records hearsay exception?

Answer 51

A record, such as a memorandum, report, data compilation, or an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:

1. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling
2. The making of the record was a regular practice of the activity, and
3. the record was made at or near the time by (or from information transmitted by) someone with knowledge.

This applies to any organization with regular business, including non-profits

no need to remember, just that the record is proper and exists

Question 52

How are business records authenticated for the business records exception?

Answer 52

For the record to be admissible under the business records hearsay exception, the custodian of the record or other qualified witness may testify that the above requirements have been met. Alternatively, the record may be self-authenticated.

Question 53

When is a business record untrustworthy?

Answer 53

A business record that otherwise qualifies under this hearsay exception is nevertheless inadmissible if the source of information for the record or the method or circumstances of its preparation indicate a lack of trustworthiness.

Anticipation of litigation: Records prepared in anticipation of litigation, such as an employee’s accident report, may not qualify under this exception due to a lack of trustworthiness.

Question 54

When are medical records considered business records?

Answer 54

Medical records are considered business records to the extent that the entries relate to diagnosis or treatment. Statements related to fault associated with the cause of injury generally do not qualify under the business records exception.

Question 55

When do police reports qualify under the business records exception?

Answer 55

A police report can qualify under the business records exception, but a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police when making the statement. The statement may, however, qualify under another hearsay exception, such as the opposing party’s statement.

Question 56

What about if something is missing from a business record?

Answer 56

Evidence that a matter is not included in a record of a regularly conducted activity may be admissible to prove that the matter did not occur or exist, provided that a record was regularly kept for a matter of that kind. The circumstances, including the possible source of the information, must not indicate a lack of trustworthiness.

Question 57

What is the public records exception to the hearsay rules.

Answer 57

A hearsay exception applies to a record or statement of a public office or agency that sets out:

1. the activities of the office or the agency;
2. an observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case), or
3. Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.

Investigative reports: In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception.

Question 58

When is does the public record exception fail for lac of trustworthiness?

Answer 58

As with the business records exception, the court may exclude any evidence offered under this exception if the source of the info or other circumstances indicate a lack of trustworthiness.

Question 59

Under the public records exception, what is the effect of the absence of a record?

Answer 59

Testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record for matters of that kind.

In a criminal case, a prosecutor must provide the D with a written notice of the intent to offer such evidence at least 14 days before trial, and then the D has 7 days to object in writing

Question 60

When is a record or birth, death or marriage not excluded?

Answer 60

A record of birth, death, or marriage is not excluded as hearsay if the event is reported to a public office in accordance with a legal duty.

Question 61

When is a statement contained in a treatise, periodical, or pamphlet NOT excluded as hearsay?

Answer 61

IF:

1) An expert witness relied on the statement during direct examination OR it was called to an expert’s attention on cross, AND
2. the publication is established as a reliable authority by admission or testimony of the expert’s witness, by another expert’s testimony, or by judicial notice.

RESULT: Statement is read into evidence, but the publication itself may not be received as an exhibit.

Question 62

When is a judgment on previous conviction NOT excluded as hearsay?

Answer 62

Evidence of a final judgment of conviction is not excluded as hearsay if all three of the following conditions are met:

1. the judgment was entered after a trial or guilty plea, but not a plea of no contest
2. The conviction was for a crime punishable by death or imprisonment for more than 1 year, AND
3. The evidence is offered to prove ay fact essential to sustain the judgment

EX: traffic offense does not qualify, and cannot be used as evidence of the driver’s evidence under this exeption

ALSO: if the Prosecutor in a crim case offers evidence of a final judgment of conviction for purpose other than impeachment, the judgment must have been against the defendant

Question 63

What are the other 8 hearsay exceptions?

Answer 63

Other hearsay exceptions for which the declarant’s availability is immaterial inlclude:

1. A statement concerning personal for family history such as birth, death marriage or divorce contained in a regularly-kept religious record
2. A statement of fact about personal or family history contained in a family record, such as a bible or an engraving on a ring
3. A statement of fact in a marriage or baptismal certificate
4. records of, and statements in documents affecting an interest in the property
5. statements in ancient documents. ancient documents must be authenticated and in existence at least 20 years
6. Market reports and similar commercial publications generally relied upon by the public
7. Reputation concerning personal or family history, or character
8. a judgment admitted to prove a matter of personal, family or general history or a boundary, if the matter was essential to the judgment and could be proved by evidence of reputation. rule 803(23)

Question 64

What is the residual hearsay exception?

Answer 64

The residual hearsay exception applies to a statement that is not otherwise covered by the federal rules. A hearsay statement may be admissible under this exception if:

1. The statement has equivalent circumstantial guarantees of trustworthiness
2. it is offered as evidence of a material fact
3. it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain, AND
4. admission will best serve the purposes of the federal rules and the interests of justice

Question 65

What are the logistics required to apply the residual exception?

Answer 65

The proponent must give an adverse party reasonable notice before the trial or hearing of their intent to offer the statement as well as its particulars, including the declarant’s name and address.

Question 66

What are the two circumstances under which hearsay evidence has been successfully challenged on constitutional grounds?

Answer 66

Hearsay evidence has successfully been challenged on two constitutional grounds:

1. Sixth Amend: Confrontation Clause
2. 14th amend: Due Process

Question 67

when does hearsay evidence violate the 6th amendment?

Answer 67

In a criminal trial, the Confrontation Clause of the 6the amendment requires that, in order to admit an out-of-court testimonial statement of a declarant (i.e. hearsay) against a defendant, the declarant must be:

1. unavailable, AND
2. The defendant must have had prior opportunity to cross-examine the declarant (Crawford)

Note: the SC said in dicta that a dying declaration may not be excluded b/c it is based in common law that predates the confrontation clause

Question 68

For purposes of a 6th amend hearsay analysis, what is a testimonial statement?

Answer 68

The analysis is objective, not the subjective purpose of the participants, so:

YES: a statement made during a police interrogation that had the primary purpose of ascertaining past criminal conduct is testimonial, as is a certificate of a governmental lab analysis that a substance was an illegal drug.

NO: a statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance during an ongoing emergency (so, a 911 call) is NOT testimonial. Also, a statement made by a fatally-wounded victim as to identity of his assailant, for the same reason. it was made to assist police during an ongoing emergency

Question 69

For purposes of a 6th amend hearsay analysis, when is the declarant considered unavailable for purposes of forfeiture by wrongdoing?

Answer 69

The Confrontation Clause mandates that the use of hearsay evidence based on the forfeiture-by-wrongdoing exception requires the D to have acted with the particular purpose of making the declarant unavailable. The mere fact that the declarant is unavailable due to the witness’ act, even if it is murder, is not sufficient to establish such a purpose when the defendant is on trial for the act that made the witness unavailable.

Question 70

When does the 14th amendment due process clause prevent the exclusion of hearsay evidence?

Answer 70

The Due Process clause of the 14th amendment may prevent application of a hearsay rule when such rule unduly restricts a defendant’s ability to mount a defense.

EX: application of a state evidentiary rule that prevents a defendant from using a witness’s hearsay statements to impeach the defendant’s in-court testimony operated to deny the defendant the ability to present witnesses in the defendant’s own defense

Question 71

How does the confrontation clause feel about mediated testimony?

Answer 71

The Confrontation clause reflects a preference for face-to-face confrontation of a defendant and witness in court.

EX: a D who is charged with committing a sex crime against a child CAN force the victim to testify in open court rather than from behind a screen that blocks the witness’s view of the D

This is counterbalanced only when there is an important public interest at stake, such as protecting a child. In other words, the first example does not presumee trauma, but if trauma is shown then then something like closed-circuit television can be used, but only with the specific finding that testifying in open court would cause serious emotional distress.