Hearsay Flashcards
What is Hearsay?
Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is generally not admissible, subject to exceptions. Fed. R. Evid. 801-02.
What safeguards does the Hearsay rule provide?
- Oath: this subjects the testimony to perjury charges if it later turns out that the witness was lying
- Personal Presence: allows jury to observe the witness’s demeanor
- Cross-Examination: this is the main justification for the hearsay rule.
What are the concerns that we have about testimony that led to the creation of the Hearsay rule?
- Ambiguity: is the witness’s language accurate?
- Insincerity: is the witness telling the truth?
- Erroneous Memory: has the witness maintained an accurate memory?
- Faulty Perception: did the witness perceive what was said accurately? Didn’t observe things correctly in the first place.
What are some non-hearsay uses of out of court statements? And what are some examples?
- To show the declarant’s state of mind
e. g confusion, knowledge - To show the statement’s effect on the listener:
e. g. duress, notice - Statements that have legal significance (“verbal acts”) e.g. performative utterances
What is a statement for hearsay purposes? And what is the rule?
Fed. R. Evid. 801(a): “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.”
What are some types of assertions that qualify as statements for hearsay purposes?
- Verbal or written communications intended as assertions:
- Non-verbal conduct intended as an assertion:
- Verbal or written expressions that reveal something beyond what is communicated.
What is the Confrontation Right?
A criminal defendant has a constitutional right to be confronted with the witnesses against him.
Confrontation is satisfied by in court testimony, in the presence of the defendant, subject to cross-examination.
Two limitations on the reach of the confrontation clause?
- Applies only in “criminal prosecutions.”
- Grants the right of confrontation only to “the accused.” The government cannot complain, on confrontation grounds, if the defendant introduces an out of court witness.
How do you perform Hearsay Analysis?
- Is the out of court statement admissible under the FRE?
i. Does it fall within the definition of hearsay?
ii. If it is hearsay, does it fall within an exception?
b. If the out of court statement is admissible under the rules of evidence, is it nevertheless excluded by the confrontation clause? (Doctrine of constitutional avoidance – courts should always try to avoid constitutional questions)
What are testimonial statement?
Testimonial if primary purpose is to establish or prove past events or substitute for in court testimony
What are non testimonial statements?
Non-testimonial if primary purpose is to enable police assistance to meet an ongoing emergency.
If it is testimonial, is it automatically excluded?
If it is “testimonial,” the statement will be excluded unless (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant.
General exceptions to hearsay rule?
Statements that are defined as not hearsay, hearsay exceptions (depending on availability of declarant)
Examples of statements defined as “not hearsay”?
i. Prior statements by witnesses
ii. Admissions by party opponents
What are implied assertions? And are they admissble? Any cases come to mind?
Implied assertions are out-of-court statements that are offered to prove something the speaker did not intend to assert. Non-assertive verbal statements introduced for what they imply not what they assert. Example: I need to put on a sweater to prove that it was cold.
Cases: Zenni (betting case, called to place a bet, introduced to prove they blived this was a betting institution - Court says this is admissible, not subject to hearsay infirmities)
Dullard: there is a cop out there and I am nervous. This is hearsay. because it does not describe a conduct.
