Hearsay

Question 1

Rule 801(a) - Definitions that Apply to Exclusions from Hearsay - Statement

Answer 1

Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion

Question 2

Rule 801(b) - Definitions that Apply to Exclusions from Hearsay - Declarant

Answer 2

Declarant. “Declarant” means the person who made the statement.

Question 3

Rule 801(c) - Definitions that Apply to Exclusions from Hearsay - Hearsay

Answer 3

Hearsay. “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.

Question 4

Rule 801(d)(1) - Definitions that Apply to Exclusions from Hearsay - Statements that Are Not Hearsay - Declarant-Witness’s Prior Statement

Answer 4

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(C) identifies a person as someone the declarant perceived earlier.

Question 5

Rule 801(d)(2) - Definitions that Apply to Exclusions from Hearsay - Statements that Are Not Hearsay - An Opposing Party’s Statement

Answer 5

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in the furtherance of the conspiracy.

The statement must be considered but not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

Question 6

The declarant in hearsay

Answer 6

Declarant – person who makes a statement

Question 7

The witness in hearsay

Answer 7

Witness – the person who will be introducing the declarant’s statement into the courtroom, either by testifying about it or introducing it in the form of a document

Question 8

Two primary types of assertion

Answer 8

Verbal statement and documents

Question 9

Rule 802 - The Rule Against Hearsay

Answer 9

Hearsay is not admissible unless any of the following provides otherwise:
A federal statute;
These rules; or
Other rules prescribed by the Supreme Court

Question 10

Two questions when a prosecutor attempts to offer hearsay against the defendant

Answer 10

First: does the hearsay evidence fall within one of the exemptions to the hearsay rule,

Second: even if it does would admitting it violate the confrontation clause

Question 11

Confrontation Clause of the 6th Amendment

Answer 11

“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.”

Creates a heightened barrier to entry for some hearsay evidence in criminal trials

Question 12

Crawford v. Washington

Answer 12

With nontestimonial hearsay evidence, states can have flexibility in their hearsay law

Where testimonial hearsay evidence, is at issue, however, the Sixth Amendment demands that it is only admissible if the declarant was unavailable at trial and the defendant had a prior opportunity to cross examine.

At a minimum, “testimonial” includes: prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.

Question 13

Davis v. Washington

Answer 13

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

At least the initial interrogation of a 911 call is ordinarily not designed primarily to establish or prove some past fact, but to describe current circumstances requiring police assistance

Question 14

Rule 803(1) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Present Sense Impression

Answer 14

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it

Question 15

Rule 803(2) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Excited Utterance

Answer 15

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Question 16

Rule 803(3) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Then-Existing Mental, Emotional, or Physical Condition

Answer 16

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as a mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 17

Rule 803(4) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Statement Made for Medical Diagnosis

Answer 17

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(4) Statement Made for Medical Diagnosis or Treatment. A statement that:

(A) is made for – and is reasonably pertinent to – medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 18

Three foundational elements to Rule 803(1) Present Sense Impression

Answer 18

(1) the declarant must make the statement while actually perceiving an event or immediately thereafter. The passage of even a few minutes time is enough to defeat the exception.
(2) the explanation of the event must be a simple description of the observed event or condition
(3) the declarant must have personal knowledge of the described event.

Question 19

Foundational elements of Rule 803(2) Excited Utterance

Answer 19

(1) there must be a stratling event. Note that this requirement illustrates another different between the present sense impression and the excited utterance. A present sense impression can relate to an ordinary, unexceptional observation.
(2) the declarant must perceive the event
(3) the event must trigger the “stress of excitement” in the declarant. Generally, descriptions of the declarant’s emotional state, physical appearance, behavior and condition suffice to demonstrate the stress of excitement
(4) the statement must relate to the startling event itself

Question 20

Factors courts consider in evaluating whether the declarant is under the requisite stress for the excited utterance hearsay exception to apply

Answer 20

(1) lapse of time between event and declaration;
(2) age of declarant;
(3) physical and mental state of the declarant;
(4) characterstics of the event; and
(5) subject matter of the statement

Question 21

Foundational elements for then-existing mental, emotional, or physical condition

Answer 21

(1) first and foremeost, the declarant’s bodily, emotional or mental condition must be at issue in the case.
(2) the statement made must be a present or contemporaneous statement and not a statement of past feelings or conditions. Thus, “I feel a sharp stabbing pain in my abdomen” would be admissible, whereas “yesterday I felt a sharp, stabbing pain” would not be admissible.
(3) the statement must be of the declarant’s state of mind, not someone else’s. “Bob feels great today” is a statement that is inadmissible unless Bob himself has made the statement

Question 22

List of Rule 803’s hearsay exceptions

Answer 22

(1) Present Sense Impression
(2) Excited Utterance
(3) Then-Existing Mental, Emotional, or Physical Conditions
(4) Statement Made for Medical Diagnosis or Treatment
(5) Recorded Collection
(6) Record of a Regularly Conducted Activity
(7) Absence of a Record of a Regularly Conducted Activity
(8) Public Records
(10) Absence of a Public Record

Question 23

Foundational elements for statements made for medical diagnosis or treatment

Answer 23

(1) the statement must relate to the cause or condition. Statements describing what happened are admissible insofar as they are related to treatment. For example, it might be related to treatment for the patient to explain that she had been hit by a car, but not related to treatment that the other driver ran a red light.
(2) the statement must be made for the purpose of obtaining treatment. Whether made directly to medical personnel or even to a family member or caregiver, the key element is the declarant’s understanding that the statement is related to receiving treatment.

Question 24

Rule 805 - Hearsay Within Hearsay

Answer 24

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Question 25

Double Hearsay example

Answer 25

Example: medical record – doc itself is hearsay and could include pieces of hearsay within.

Statements made by a patient for the purpose of obtaining medical treatment and recorded by doctor or nurse are hearsay but independently admissible under the medical hearsay exception of Rule 803(4) - If not necessary for medical treatment, not admissible under that exception

The concept of double hearsay also applies to out-of-court statements, offered for the truth of the matters asserted therein, that are exempmted from the hearsay rule under Rule 801.

Question 26

Rule 803(5) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Recorded Collection

Answer 26

The following are not excluded by the rule against hearsay, regardless of whther the declarant is available as a witness:

(5) Recorded Collection. A record that

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party

Question 27

When does 803(5) Recorded Collection come into play?

Answer 27

Rule 803(5) comes into play only when a forgetful witness has been unable to testify from memory and after unsuccessful efforts were made to refresh the witness’s recollection under Rule 612.

Question 28

The basis of the recorded recollection hearsay exception, according to the Advisory Committee

Answer 28

According to the Advisory Committee, the basis for the recorded recollection hearsay exception is “the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them.”

Question 29

Four primary foundational elements required in order to introduce evidence under Rule 803(5) recorded recollection

Answer 29

(1) The witness must demonstrate – on the stand – the inability fully and accurately to remember something about which the witness’s has actual personal knowledge. On cross-examination, the inability to remember can include feigned forgetfulness or willful efforts to evade answering questions.
(2) The advocate’s efforts to refresh the witness’s recollection under Rule 612 must fail.

(3) The advocate must establish that the witness made or adopted a record of the matter while it was still fresh in the witness’s mind. There is no set time period for determining whether the matter was still fresh in the witness’s mind.
(4) The advocate must establish that the record correctly reflects the witness’s knowledge.

Question 30

What happens when the foundational elements for Rule 803(5) recorded recollection are met

Answer 30

After the foundational elements have been met, the advocate is permitted to read—or play, as in the case of an audio or video recording—the record to the fact-finder. The hard copy of the record itself is not received into evidence; this is to prevent the fact-finder from giving greater credence to the record than to the live testimony of other witnesses who are testifying form personal knowledge.

Question 31

Ways to prove the contemporaneity and accuracy of the record under 803(5) recorded recollection

Answer 31

(1) the witness can directly testify to it (as soon as I got home, I wrote down everything that happened),
(2) the witness can testify about her habit with respect to recoring important information (I don’t have any specific recollection of that day, but I make a habit of keeping a diary), and
(3) the witness can testify about her routine practice (whenever I get an accident report, I review it. I won’t sign it if there are mistakes or questions. So if my signature is on that report, it means I reviewed it and that it was accurate.)

Question 32

What a judge can do when a witness feigns forgetfulness on the stand

Answer 32

When a witness feigns forgetfulness on the stand, Rule 803(5) permits the judge to determine that the witness is not testifying “fully and accurately” and allow opposing counsel to introduce the witness’s recorded recollection into evidence.

Question 33

Rule 803(6) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Records of a Regularly Conducted Activity

Answer 33

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(6) Records of a Reglularly Conducted Activity. A record of an event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of the information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Question 34

Rule 803(7) - Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Absence of a Record of a Regularly Conducted Activity

Answer 34

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) neither the possible csource of the information nor other circumstances indicate a lack of trustworthiness.

Question 35

Foundational elements to satisfy Rule 803(6), the business records exception

Answer 35

1. The record must be made and kept in the course of a regularly conducted business activity. And as a corollary to this element, the record must be of the type regularly kept and maintained by that business.
2. The record must be made at or near the time of the event recorded therein.
3. The record must be made by, or from information transmitted by, a person with knowledge who had a business duty to report the information.

Question 36

Foundational elements to satisfy Rule 803(7), absence of entry

Answer 36

1. The same elements to establish a business record, plus
2. The witness must introduce the record that shows absence of entry, or
3. The witness must testify that a diligent search of files revealed no record at all

Question 37

What does “business activity” encompass

Answer 37

The definition of “business activity” in the rule is broad enough to encompass nearly any recognizable activity, including traditional businesses, nonprofit organizations, sole proprietorships, clubs, fraternal organizations, and even illegal enterprises.

Question 38

Judge’s recourse under 803(6) business records when there are indications that it lacks trustworthiness

Answer 38

Rule 803(6) permits a judge to exclude a record if there are indications that it lacks trustworthiness. When records, such as accident reports, are created with the possibility of litigation in mind, the record may well be outside the scope of regular business. This is because when an employee fills out an accident report, particularly in cases involving damage or injury to third parties, there is a powerful incentive to write the report in a way that will minimize liability to the employer.

Question 39

Classic method for calling a business record into evidence

Answer 39

The classic method for introducing a business record in to evidence is to call a witness, known as a custodian, to testify how the record was made and kept. The custodian does not have to be the same person who created the record or who is in charge of keeping or maintaining the activity’s records; it is enough for the custodian to be familiar with the processes used to crate and store the records

Question 40

Rule 803(8) - Exception to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Public Records

Answer 40

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

Question 41

Rule 803(10) - Exception to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness - Absence of a Public Record

Answer 41

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(10) Absence of a Public Record. Testimony—or a certificate under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

Question 42

Reasons public records are considered

Answer 42

The foundational presumption is that the declarant (the public official) will be motivated to create accurate records by the duties of his or her position.

A second reason is that the “business of government” would suffer without accurate records. For example, municipalities might be deprived of significant property tax revenues in the absence of accurate property valuation records.

A third reason is that, given the volume of transactions conducted byl most public agencies, public officials could not possibly be expected to independently remember all the facts recorded in public records.

As with other types of written records, the multiple hearsay rule applies to public records.

Question 43

Foundational Elements for Public Records

Answer 43

1. The record is a certified copy of a public record or report. Rule 902(1)-(4) provides for the self-authentication of public documents and records.
2. The record meets one of the three clauses of Rule 803(8):
   (A) It sets forth the activities of the office or agency. Clause A records simply need to be authenticated under Rule 902 to satisfy admissibility requirements.

(B) It contains matters observed pursuant to duty imposed by laws as to which there was a duty to report. The foundation for Clause B records includes the following additional elements:

1. The government employee or agent must have firsthand knowledge of the event or condition described in the report. 
2. The source of the information must be under a legal duty to report the information. 
3. The public agency must have a legal obligation to prepare and maintain the record. 

(C) It contains factual findings from an investigation conducted pursuant to legal authority.

Question 44

Three categories of public records

Answer 44

(A) the activities of the office or agency

(B) matters observed pursuant to duty imposed by law as to which there was a duty to report

(C) factual findings made pursuant to authority granted by law

Question 45

Foundational Elements for lack of public record

Answer 45

1. The same elements to establish the existence of an actual record in which there is no entry, or the type of record where the information or matter would be recorded if it existed.
2. Live testimony or a certificate that complies with Rule 902 that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

Question 46

Included in “the activities of the office or agency” under public records

Answer 46

Clause A provides for the admissibility of records pertaining to the “activities of the office or agency.” Includes: “accounting records of government agencies; dockets and journal entries of courts, legislative bodies and administrative tribunals; certificates of title, registry, death, and birth; records of licensing agencies; and records of deeds and conveyances.”

Question 47

“matters observed pursuant to duty imposed by law as to which there was a duty to report” in public records

Answer 47

The classic example is a police report

Clause B records also pertain to the business of the agency, but they are externally focused. Example: weather records. Pursuant to duty imposed by law, officials of a weather agency take measurements of weather-related data and create records in accordance with legal requirements. Even though the business of the agency is to measure weather, it does not internally produce or generate weather; there must be an external focus in order to obtain the information in the agency’s records

Question 48

“matters observed pursuant to duty imposed by law as to which there was a duty to report” - conclusions or opinions

Answer 48

It is important to recognize that Clause B records encompass simple factual observations rather than conclusions or opinions.

Question 49

“matters observed pursuant to duty imposed by law as to which there was a duty to report” - confrontation clause implications

Answer 49

Important caveat in Clause B that is rooted in the Confrontation Clause of the Sixth Amendment. In criminal cases, the rule excludes matters observed by opolice officers and other law enforcement personnel.

A law enforcement officer in a criminal case must testify from memory and subject to cross-examination, like any other witness, and the police report or other record is not independently admissible in evidence

Question 50

“actual findings made pursuant to authority granted by law” - interpretive element

Answer 50

Records admitted under Clause C contain an interpreteive or evaluative element not present in Clasue B records.

Supreme Court held that the phrase “factual findigns” in 803(8)(C) includes both facts and opinions

Question 51

Two broad categories of admissible hearsay

Answer 51

(1) Rule 803, hearsay where the availability of the declarant is immaterial; and
(2) Rule 804, hearsay requiring a prior finding of unavailability.

Question 52

Rule 804(a) - Exceptions to the Rule Against Hearsay - When the Declarant Is Unavailable as a Witness - Criteria for Being Unavailable

Answer 52

(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matte rof the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of tdeath or a then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s propoentent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying

Question 53

Rule 804(b) - Exceptions to the Rule Against Hearsay - When the Declarant Is Unavailable as a Witness - The Exceptions

Answer 53

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—and opportunity and similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed 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 invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal availability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Question 54

Former Testimony (804(b)(1))

Answer 54

(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—and opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Question 55

Statement Under the Belief of Imminent Death (804(b)(2))

Answer 55

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Question 56

Statement Against Interest (804(b)(3))

Answer 56

(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed 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 invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal availability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Question 57

Former testimony factors

Answer 57

Identity of the parties

Similarity of motives to develop testimony

Prior opportunities to develop testimony

Question 58

Burden of showing unavailability under Rule 804

Answer 58

The proponent of evidence under Rule 804 has the burden to demonstrate unavailability of the hearsay declarant by a preponderance of the evidence

Question 59

Key Foundational Elements to Prior Testimony

Answer 59

The proponent of evidence under this section must establish the following:

(a) The declarant is unavailable under Rule 804(a).
(b) The former statement was made in an authorized deposition or another proceeding.
(c) The former statement was made under oath.
(d) The party against whom the statement is offered, or a predecessor in interest, had a similar motive to develop the testimony

Question 60

Foundational Elements of Dying Declaration

Answer 60

The proponent of the evidence must establish the following:

(a) The declarant is unavailable under Rule 804(a). Note that unlike the common law, proof of the declarant’s death is not required.
(b) The statement was made when the declarant believed death was imminent.
(c) The statement related to the cause or circumstances of what the declarant subjectively believed to be his impending death.
(d) The statement was based on the declarant’s first-hand knowledge of such causes or circumstances.

Question 61

Foundational elements of statements against interest

Answer 61

(a) The declarant is unavailable to testify at trial.
(b) The declarant has first-hand knowledge of the factual matters in the statement.
(c) The nature of the statement is such that a reasonable person would not have made it unless believing it to be true.
(d) At the time of utterance, the statement must be contrary to the declarant’s pecuniary, proprietary, or penal interest

Question 62

Rule 806 - Attacking and Supporting a Declarant’s Credibility

Answer 62

When a a hearsay statement—or a statement described in Rule 801(d)(2)(C), (D), or (E)—has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by an y evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the aprty may examine the declarant on the statement as if on cross-examination.

Question 63

Two changes Rule 806 makes to the methods of impeachment traditionally used

Answer 63

(1) with respect to extrinsic proof of inconsistent statements, the rule does away with Rule 613(b)’s requirement that the impeaches party is afforded an opportunity to interrogate the witness thereon.”
(2) the rule states that if the party against whom the hearsay is offered wishes to call the hearsay declarant to the stand to be impeached, the party is permitted to examine the declarant as if on cross-examination.

Question 64

Rule 807 - Residual Exception

Answer 64

(a) In General. Under the following circumstances, a hearsay stetemnt is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exceptin in Rule 803 or 804:
(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 whih it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing , the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

Question 65

Elements residual hearsay must satisfy before it can be admitted at trial

Answer 65

(1) The proponent has provided notice to the adverse party sufficiently in advance of the trial or hearing to enable a fair opportunity for the adverse party to prepare to meet it;
(2) The statement bears circumstantial guarantees of trustworthiness equivalent to those of the 23 exceptions under Rule 803 and/or the five exceptions of Rule 804;
(3) The statement is offered as proof of a material fact at trial;
(4) The statement is more probative on the point for which it is being offered than any other evidence that the proponent can procure through reasonable efforts;
(5) The statement’s admission into evidence serves the general purposes of the Federal Rules of Evidence and the interests of justice.
(6) For testimonial statements in a criminal case, the defendant’s confrontation rights have been satisfied.

Question 66

Examples of establishing trustworthiness under Rule 807

Answer 66

The declarant’s motivation to speak truthfully or untruthfully

Spontaneity of the statatement

Whether the statement was elicited by leading questions

Time elapse between event and statement

Whether the declarant was subject to cross-examination at the time the statement was made

Relationship between declarant and the person to whom the statement was made

Whether the declarant recanted or reaffirmed the statement

Whether the statement was recorded or videotaped

Whether the declarant’s first-hand knowledge is clearly demonstrated.

Comparing the characteristics of the proffered hearsay to the foundational requirements of an existing hearsay exception

Question 67

Five examples of hearsay

Answer 67

1) On the issue of whether the traffic light was red or green, the witness testifies that he was told by Decla that the light was green. (Oral hearsay.)
2) On the issue of whether a glassine envelope contained heroin, the prosecution offers a crime laboratory report that the envelope contained heroin. (Written hearsay.)
3) On the issue of whether Spano had been a resident of New York for one year prior to commencing his lawsuit, Spano offers the affidavit of Decla that Spano had lived in Buffalo for 10 years. (Written hearsay; under oath, but hearsay nonetheless.)
4) On the issue of whether Yuckl was the child molester, a police officer testifies that when he asked the child-victim whether the perpetrator had a beard, the child nodded his head. (Hearsay by assertive conduct; nodding, which translates, “Yes, the man had a beard.”)
5) On the issue of whether the painting sold to Harvey was actually a genuine Picasso, there is offered a dealer’s bill of sale describing the painting as a Picasso. (Written hearsay.)

Question 68

Examples of non-hearsay

Answer 68

1) In a contract action, the written, executed contract is offered. (Although an extra- judicial writing, it is not offered to prove the truth of matters asserted in it; legally operative fact.)
2) In an action for fraud, on the issue of defendant’s good faith in representing to plaintiff that a painting was a genuine Picasso, defendant offers a bill of sale from his art dealer describing the painting as a Picasso. (Offered to prove defendant’s good faith in repeating a representation; not offered to prove that the painting was in fact a Picasso. The evidence, in other words, was offered to show the impact of the dealer’s representation on the defendant’s state of mind, i.e., his belief.)
3) On the issue of whether landlord knew about a defective stair, a witness testifies that he heard Decla say to the landlord, “The stair is broken.” (Offered to prove notice, not that the stair was in fact broken.)