Hearsay

Question 1

main issues of evidence

Answer 1

Accuracy: how do we know if evidence is relevent?
Efficiency: If we let too much evidence in, may result in a long trial
Predictability: need predictability in trial process so need ways to allow critical evidence in
Fairness: some things should be let in bc of due process violations
Externalities: attorney client privilege, incentives, etc.

Question 2

4 main issues of hearsay

Answer 2

narration: does the witness’s language convey that impression accurately? how you say something
sincerity: Is the witness testifying falsley
perception: does the witness perceive what is described and perceive it accurately
memory: does the witness retain an accurate impression of that perception

Question 3

forbidden hearsay inference

Answer 3

declarant said it –> declarant believed it –> it was true
the trip through the declarant’s mind
missing safeguards of oath, demeanor, and cross examination

Question 4

hearsay (second hand evidence)

Answer 4

an out of court statement used to prove the truth of the matter asserted

statement is not a command: that’s a red chair v. pick up the chair

Introduce witness who overhead A talking about B. B is the defendant on trial. A makes statements that support the state’s case of murder. The witness is introduced to establish that B lunged with a knife at the victim. This is classic hearsay.

Question 5

801 oral assertion, written assertion, or non verbal conduct if the person intended it as an assertion

Answer 5

non verbal assertive conduct that is the equivalent of words/statements is allowed: head nod, pointing, hand raising

non verbal implied assertions are not allowed: driving a boat indicates seaworthiness, taking off sweater bc it is warm

Question 6

hearsay workaround

Answer 6

using the statement not to prove that the statement was true but to prove something else
introducing gossip from around school not to prove that the gossip was true but to prove that defendant had knowledge of the matter relating to the gossip

can use to prove knowledge, circumstantial evidence

Question 7

harmless error

Answer 7

if evidence was admitted/not admitted and would likely have not made a difference in judgement because of other evidence, then no reversal

Question 8

standard of review

Answer 8

abuse of discretion, so hard to get overturned

Question 9

103a1

Answer 9

must state the reason for objection, if not & the objection is not obvious, then the objection is not preserved

Question 10

104 preliminary questions

Answer 10

court must devide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. in so deciding, the court is not bound by evidence rules, except on privilege

if there is a concpiracy and governemtn is trying to use the conspiracy admission exception, the court must by a preponderance of evidende determine if there is in fact a conspiracy

Question 11

relevance

Answer 11

all evidence must just be a brick int he wall to make a fact more or less true

Question 12

403 prejudice

Answer 12

evidence may be excluded even if relevant if its probative value is SUBSTANTIALLY outweighed by a danger of unfiar prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessley presenting cumulative evidence

look for things that make juries make an emotional decision

Question 13

confrontation clause

Answer 13

1.) Criminal Case + 2.) evidence introduced against the defendant +3) testimonial statements [primary purpose is to produce evidence for the court, but the mind of the answerer or the questioner?]

testimonal statement must be excluded unless the declarant is available at trial for cross examinaiton or the declarant is unavailable AND had a prior opportunity to cross the declarant

An analysts’ certification prepared in connection with a criminal investiagion or prosecution is testimonial and therefore within the compass of the confrontation clause, so the analyst who signed and conducted the activity must be put on stand (Melendez diaz/ Bullcoming)

Question 14

multiple hearsay

Answer 14

each level must be admissible

police officer’s notebook contains a quote from someone who claimed to have seen a vehicular accident

first level is the words of the eye witness (present sense impression or excited utterance?)

second level is the written words of the officer, the quote (public records?)

Question 15

Statements that are not hearsay: prior statements

Answer 15

Declarant must testify in new proceeding AND be crossed about a prior statement

1. ) the prior statement is inconsistent with declarant’s current testimony and was given under penalty of perjury
2. ) the prior statement is consistent with the declarant’s current testimony and is offered to rebut an express or implied charge that the declarant recently fabricated current testimony or acted from a recent improper motive
3. ) the prior statement identifies someone the declarant perceived earlier [typically in a photo array]

Question 16

Statements that are not hearsay: admissions

Answer 16

The statement is offered against an opposing party [def introducing against plaintiff, ie] AND

1. was made by the party in an individual or representative capacity
   a. usually personal knowledge is required, but not with direct admissions
   b. statement need not be against interest
2. is one the party manifested that it adopted or believed to be true
   a. silence or failure to respond, etc. are adoptive admissions
3. was made by a person whom the party authorized to make a statement on the subject
   a. personal knowledge not required (fox case)
4. was made by the party’s agent or employee on a matter within the scope of that relationship while it existed
5. was made by the party’s coconspirator during and in furtherance of the conspiracy

Question 17

Bruton, Richardson, Gray

Answer 17

Bruton: 2 defendants, def 1 confesses against def 2. Evidence admissible against def 1, but not against def 2 because of confrontation clause concerns. limiting instruction to jury that evidence against def 2 is hearsay is not enough. evidence is excluded in relation to def 2.

Gray: Bruton facts, but the confession is partially redacted. Me, [deleted], [deleted] and a few other guys beat the victim. Bruton violation.

Richardson: Bruton facts, but the confession is TOTALLY redacted so jury would never know that def 2 was implicated. Needed other evidence in trial for jury to make connection, while in Bruton, the jury just needed def 1 confession. Allowed

Question 18

Hearsay exceptions that apply regardless of whether the declarant is available present sense

Answer 18

present sense impression: a statement describing or explaining an event or condition made while or immediately after the declarant perceived it; 15 minutes after event when first time can speak is ok (Obayagona)

Question 19

Hearsay exceptions that apply regardless of whether the declarant is available excited utterance

Answer 19

excited utterance: broader than present sense impression, a statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused

15 minutes after okay, 9th Cir says need personal knowledge

Question 20

Hearsay exceptions that apply regardless of whether the declarant is available state of mind

Answer 20

State of mind: a statement of the declarant’s then existing state of mind (such as motive, intent or plan) or emotional, sensory, or physical condition, but not including statements of memory or belief to prove the fact remembered or believed

Then Existing Physical Condition

I am in pain bc…
I am hurt bc…

Everything after bc not admissible bc fact laden statements

Then Existing mental or emotional condition

can always use state of mind as circumstantial evidence of something other than proving the truth of the matter asserted: introducing hearsay not to prove its contents but to prove that defendant had knowledge, to prove a defense

The government is trying to set me up bc… [everything after not admissible] not hearsay at all bc circumstantial evidence used to prove knowledge/state of mind

I think the government is trying to set me up bc.. [hearsay but describes then existing mental condition] Hearsay because trying to prove what the declarant thought

When a mental condition is an element of the crime, like in extortion, can include items after bc…

Prove declarant’s later intent to do something, not the actual acts or events (Hillmon)

I expect to leave to paris with Hillmon is admissible bc it is circumstantial evidence of intent to commit a future act, highlighting the declarant’s then existing state of mind
I went to paris with Hillomon is not admissible bc it is a past act

I was scared is not admissible

Question 21

Hearsay exceptions that apply regardless of whether the declarant is available injury reports

Answer 21

A sattement that is made for and is reasonbly pertinent to medical idagnosis or treatment AND describes medical history, past or present syptioms or sensations, their inception, or their general cause

details are not admittible such as the color of the car that struck the vehicle to prove that the person in was in a car accident or that the person slipped on a rusted floor to prove that the ankle was twisted

Question 22

Hearsay exceptions that apply regardless of whether the declarant is available recorded recollection

Answer 22

past recollection recorded=a form of evidence; the record is on the matter the witness once knew about but now cannot recall well enough to testify fully and accurately; was made or adopted by the witness when the matter was fresh in the witness’s memory; and accuartely reflects the witness’ knowledge. Record can be read into evidence and to the jury

present recollection refresehed=a way to get evidence; here is a thing, does it refresh your recolletion? Not read to the jury and not introduced into evidence

Question 23

Hearsay exceptions that apply regardless of whether the declarant is available business records

Answer 23

The record was made at or near the time by someone with knowledge

The record was kept in the course of a regularly conducted activity of business, organization, occupation, or calling

a. rule envisions something like payroll documents or the like
a. Railroad business accident and witness interviewed by manager. The report that followed was not for the systematic conduct of the enterprise as a railroad business… their primary itility is in litigating, not in railroading, but see other cases with similar facts but no motivation to lie.

The record was a regular practice of that activity

A custodian or other witness testifies

The source of information is trustworthy

Can also state that the failure of a record that would ordinarly be mentioned is satisfactory evidence of its non existence + must be trustworthy

Question 24

Hearsay exceptions that apply regardless of whether the declarant is available public records

Answer 24

record of public office if it sets out the office’s activities +must be trustworthy

Or a matter observed while under a legal duty to report, but not in a criminal case a matter observed by law enforcement + must be trustworthy

Or in a civil case or against the government in a criminal case factual findings from a legally authroized investigation + must be trustworthy
a. evaluative reports from investigation are only admissible here bc confrontation clause concerns

Can also state that the failure of a record that would ordinarly be mentioned is satisfactory evidence of its non existence + must be trustworthy

Question 25

Hearsay exceptions that apply only when the declarant is unavailable: unavailable definition

Answer 25

Declarant is unavailable in these circumstances

1. declarnt is exempt from testifying bc privilege, refuses to testify despite court order, does not remember, has a disease
2. declarant is absent and statement’s proponent has not been able to reasonably procure the declarant
3. declarant might die

This section does not apply if the statement’s proponent procured or wrongfully caused the decalarnt’s unavailability as a witness in order to prevent the declarant from attending or testifying.

Some courts are split on whether you purposely make yourself unavailable by pleading the fifth if this is allowed

Question 26

Hearsay exceptions that apply only when the declarant is unavailable: former testimony

Answer 26

Former testimony

Testimony that was given as a witness at a trial, hearing, or lawful deposition, whether or not the current proceeding or a different one

AND

is now offered against a party who had - or in a civil case whose predecessor in interest had - an opportunity and similar motive to develop it by direct, cross, or redirect

note the issues because the skill of the prior lawyer may be much less than current lawyer, so while similar motive, not similar skill

Salerno: motive of a prosecutor in questioning a witness before the grand jury in the investigatory statges of a case is far different than the motive of a prosecutor in conducting trial –> evidence does not come in

Question 27

Hearsay exceptions that apply only when the declarant is unavailable: dying declerations

Answer 27

in a prosecution for homicide or in a civil case, a statement that the declarant made while velieving the declarant’s death to be imminent relating to its causes or circumstances

may be a workaround the confrontation clause

Question 28

Hearsay exceptions that apply only when the declarant is unavailable: declarations against interest

Answer 28

A statement that a reasonable person in the declarant’s position would have made only if the person beleived it to be true because when made it was so contrary to the declarant’s PROPRIETARY or PECUNIARY interest or had so great a tendency to expose the declaarnt to civil or criminal liability

+ trustworthiness in a criminal case

Question 29

Hearsay exceptions that apply only when the declarant is unavailable: forfeiture by wrongdoing

Answer 29

a statement offered against a party that wrongfully caused or helped in wrongfully causing the declarant’s avaialblity as a witness and did so intending that result

Question 30

Hearsay catchall

Answer 30

if evidence does not fit under other exceptions, evidence can be admitted if it is trustworthy, relates to a material fact, proabitive more than any other evidence, serve justice

Question 31

Due process and hearsay

Answer 31

if evidence is not admittible under hearsay rules and confrontation clause dont apply and the proponenet would be denied due process without the evidence being admitted, admit

for example, if you cant cross examine the witness or introduce your own witness bc of state law rules and the evidence is trust worthy and crucial, due process violation

if the evidence is not crucial and some fundamental trial right is not taken away, even with a mistake, the evidence is likely admissible