Hearsay Flashcards
Learn hearsay
main issues of evidence
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.
4 main issues of hearsay
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
forbidden hearsay inference
declarant said it –> declarant believed it –> it was true
the trip through the declarant’s mind
missing safeguards of oath, demeanor, and cross examination
hearsay (second hand evidence)
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.
801 oral assertion, written assertion, or non verbal conduct if the person intended it as an assertion
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
hearsay workaround
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
harmless error
if evidence was admitted/not admitted and would likely have not made a difference in judgement because of other evidence, then no reversal
standard of review
abuse of discretion, so hard to get overturned
103a1
must state the reason for objection, if not & the objection is not obvious, then the objection is not preserved
104 preliminary questions
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
relevance
all evidence must just be a brick int he wall to make a fact more or less true
403 prejudice
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
confrontation clause
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)
multiple hearsay
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?)
Statements that are not hearsay: prior statements
Declarant must testify in new proceeding AND be crossed about a prior statement
- ) the prior statement is inconsistent with declarant’s current testimony and was given under penalty of perjury
- ) 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
- ) the prior statement identifies someone the declarant perceived earlier [typically in a photo array]
Statements that are not hearsay: admissions
The statement is offered against an opposing party [def introducing against plaintiff, ie] AND
- 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 - is one the party manifested that it adopted or believed to be true
a. silence or failure to respond, etc. are adoptive admissions - was made by a person whom the party authorized to make a statement on the subject
a. personal knowledge not required (fox case) - was made by the party’s agent or employee on a matter within the scope of that relationship while it existed
- was made by the party’s coconspirator during and in furtherance of the conspiracy
Bruton, Richardson, Gray
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
Hearsay exceptions that apply regardless of whether the declarant is available present sense
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)
Hearsay exceptions that apply regardless of whether the declarant is available excited utterance
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
Hearsay exceptions that apply regardless of whether the declarant is available state of mind
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
Hearsay exceptions that apply regardless of whether the declarant is available injury reports
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
Hearsay exceptions that apply regardless of whether the declarant is available recorded recollection
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
Hearsay exceptions that apply regardless of whether the declarant is available business records
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
Hearsay exceptions that apply regardless of whether the declarant is available public records
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
Hearsay exceptions that apply only when the declarant is unavailable: unavailable definition
Declarant is unavailable in these circumstances
- declarnt is exempt from testifying bc privilege, refuses to testify despite court order, does not remember, has a disease
- declarant is absent and statement’s proponent has not been able to reasonably procure the declarant
- 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
Hearsay exceptions that apply only when the declarant is unavailable: former testimony
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
Hearsay exceptions that apply only when the declarant is unavailable: dying declerations
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
Hearsay exceptions that apply only when the declarant is unavailable: declarations against interest
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
Hearsay exceptions that apply only when the declarant is unavailable: forfeiture by wrongdoing
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
Hearsay catchall
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
Due process and hearsay
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
