Hearsay

Question 1

Hearsay - In General Definition

Answer 1

Hearsay is an out-of-court statement offered for the truth of the matter asserted

• Out-of-court: Prior to the current court proceedings
• Statement: assertion of fact or opinion (the particular statement only not of the whole lawsuit)
• Truth of the matter asserted (TOMA): what is the declarant really saying

Question 2

Masked Hearsay

Answer 2

Taking what someone else said and asserting it as if it was their normal testimony. Raise lack of personal knowledge

Question 3

Four goals of cross-examination

Answer 3

• Test credibility to see if the witness is believable
• Ask questions to test the witness’s memory
• Questions to test whether the witness’ narration makes sense
• Questions to test whether the witness’ perception of happened is accurate
• Question to test veracity

Question 4

Non-Hearsay Use of Out of Court Statements (not asserted for truth) - Effect on Listener

Answer 4

Statement that is used to show a relevant effect on the listener

Question 5

Non-Hearsay Use of Out of Court Statements (not asserted for truth) - Verbal Acts Doctrine

Answer 5

Words of independent legal significance simply because they were spoken

Question 6

Non-Hearsay Use of Out of Court Statements (not asserted for truth) - Verbal Parts of Acts

Answer 6

Ambiguous action clarified by verbal parts (like writing a check and the person says “here is your check”)

Question 7

Non-Hearsay Use of Out of Court Statements (not asserted for truth) - Why police commenced an investigation

Answer 7

Statements indicating why the police became involved or conducted an investigation

Question 8

Non-Hearsay Use of Out of Court Statements (not asserted for truth) - Linkage

Answer 8

Something connecting two people (A having B’s business card even though A says he doesn’t know B)

Question 9

Exceptions to Rule Against Hearsay - Dying Declaration

Answer 9

unavailability is required (FRE 804(b)(2))

The (1) unavailable declarant while (2) believing that they are facing impending death makes a relevant statement

• FRE: homicide and civil cases
• CA: all criminal and civil and the person has to be actually dead

Question 10

Exceptions to Rule Against Hearsay - Excited Utterance

Answer 10

The statement was made after a (1) startling event, that (2) relates to the event, and the declarant was (3) still upset (excited) when the statement was made (uttered)

Elements:

• Startling event
• Relates to the startling event
• Upset / excited still: totality of the circumstances analysis (subjective standard)

Nature of the event, lapse of time, emotional condition, physical condition, speech pattern, spontaneity, *be careful of questioning because a leading question removes excited utterance exception

Question 11

Exceptions to Rule Against Hearsay - Fresh complaint of rape

Answer 11

• Admission that a complaint was made following the rape

not hearsay not an exception - just a rule

Question 12

Exceptions to Rule Against Hearsay - Present Sense Impression

Answer 12

Declarant (1) perceiving the event, makes a statement (2) while perceiving or immediately after that (3) describes or explains the event (Cannot be too long of a time after – very fast after)

(2)
FRE: while or immediately after
CA: While the event occurs

(3)
CA: specificity to describe the declarant’s conduct
CANNOT BE A PAST EVENT

Question 13

Exceptions to Rule Against Hearsay - Out-of-court statements of identification

Answer 13

(witness must be available FRE 801(d)(1)(c))

Statement identifies a person as someone the declarant perceived earlier.
- CEC: At the time of the crime or when still fresh in declarant’s memory + “true reflection”

Question 14

Exceptions to Rule Against Hearsay - Party Admissions

Answer 14

Must be offered against the negatively affected party. “Anything you say can be used against you.”

Question 15

Exceptions to Rule Against Hearsay - Types of Party Admissions - Personal Admissions

Answer 15

Individual or person with representative capacity make statement damaging their own interests or exculpatory

Question 16

Exceptions to Rule Against Hearsay - Types of Party Admissions - Adoptive Admission

Answer 16

Non-party makes a statement that is adopted by the party either expressly or implicitly (through silence). Statement of adoption and statement adopted is admitted whether or not a statement is adopted can be analyzed by the totality of the circumstances.

For silence to work:
o Heard and understood the question
o No impediments to responding
o Reasonable person

Question 17

Exceptions to Rule Against Hearsay - Types of Party Admissions - Authorized Admissions

Answer 17

While the party is not the actual declarant, the declarant is making statement on behalf of the party

Question 18

Exceptions to Rule Against Hearsay - Types of Party Admissions - Employee Admissions

Answer 18

Declarant is an employee at the time the statement is made and the statement matter is within the scope of employment.

• CA: only when liability or breach of duty is in issue

Question 19

Exceptions to Rule Against Hearsay - Types of Party Admissions - Co-Conspirator Exception

Answer 19

Anything a fellow co-conspirator says during and in furtherance of the conspiracy is admissible against all fellow co-conspirators. Arrests may indicate end of conspiracy.

Question 20

Exceptions to Rule Against Hearsay - State of Mind Exception

Answer 20

Declarant’s then existing mental or physical condition, strict “present-time” requirement

• Then existing physical condition
• Then existing mental or emotional condition
• Intent to do something in the future
• Statement about declarant’s will

Question 21

Exceptions to Rule Against Hearsay - Medical diagnosis or treatment exception

Answer 21

Declarant’s statement pertinent to the doctor’s ability to provide-treatment or make diagnoses
- CA: only allowed in child abuse cases

Question 22

Exceptions to Rule Against Hearsay - Past Recollection Recorded

Answer 22

Document prepared by person who has personal knowledge while it was still fresh in memory. Declarant should testify to the accuracy

Question 23

Exceptions to Rule Against Hearsay - Present Recollection Refreshed

Answer 23

Refreshing the witness’s memory with anything. BER and authentication are not issues because the evidence will be admitted as testimony

Question 24

Exceptions to Rule Against Hearsay - Former Testimony

Answer 24

(unavailability is required)

Unavailable declarant’s former testimony in which the party whom the evidence is being offered against had the opportunity to cross examine or when in civil cases, the motive for cross was the same in the first as the second trial if the parties are different

Question 25

Exceptions to Rule Against Hearsay - Statements against interests

Answer 25

(unavailability is required)

Statement of declarant is against their interest. If it implicates an additional person, not the declarant, the statement must be “edited” to implicate only the declarant.

• CA: Includes statements against declarant’s social interest
• FRE: If declarant is unavailable because they are dead, corroborating circumstances surrounding the statement must be present to prevent made up statements.

Question 26

Exceptions to Rule Against Hearsay - Business Records Exception

Answer 26

The document sought must be made in the regular course of business created by a person within their circle of responsibility and with personal knowledge at or near the time of the event. Foundation must be established by a custodian or special subpoena or self-authentication.

Question 27

Exceptions to Rule Against Hearsay - Public Records Exception

Answer 27

Record or statement of a public office’s (1) simple and factual internal activities, (2) concrete and factual, observation of an event when there is a legal duty to report, (3) factual findings and conclusions, in civil cases or against the government in criminal cases

Question 28

Exceptions to Rule Against Hearsay - Residual / Catch-All Exception

Answer 28

The judge has discretion to admit other statements that don’t meet any hearsay exceptions if the judge makes a reliability analysis on a case-by-case basis.

Question 29

Layered Hearsay

Answer 29

Hearsay within hearsay is present (no matter how many levels) all levels are admissible for the final to be admitted to evidence.

Question 30

Confrontation Clause (6th A)

Answer 30

The 6th amendment requires that in criminal proceedings the D has the right to confront the evidence.
If the declarant testifies at trial - confrontation clause satisfied
If the declarant does not testify at trial there is a further analysis
- Testimonial or non-testimonial? Did the declarant make the statement in anticipation for trial?
- - If non-testimonial – no confrontation issue
- - Testimonial = go to Crawford doctrine

Question 31

Confrontation Clause (6th A) - Crawford Doctrine

Answer 31

Crawford doctrine: Did the D have an opportunity to cross examine the now unavailable declarant at an earlier time?
• Does not apply to: Statement not used for TOMA, false statements, competency, civil cases, dying declarations + party admissions

Question 32

Confrontation Clause (6th A) - Bruton Doctrine

Answer 32

Bruton doctrine: If the statement by the declarant incriminate another non-testifying defendant by name or other obvious reference, the statement is inadmissible because it violates the confrontation clause.

Question 33

Forfeiture by Wrongdoing

Answer 33

Both a defendant’s hearsay and confrontation clause objections can be forfeited if the defendant engages in conduct to dissuade the witness from testifying

Question 34

Preliminary Questions of Fact

Answer 34

When establishing the foundation, certain questions are decided by the judge while other questions are decided by the jury. The key is whether or not it is reasonable or fair to expect the jury to disregard the evidence if it is found to be inadmissible.

• Standard of proof is preponderance of evidence
• Judge: bench trial decides all otherwise (not exclusive): testimonial competence, deadman’s statute, unavailability, expert witness, privilege, utterance = hearsay?, hearsay, exception standards
• Jury: personal knowledge (preference for jury to decide facts), authentication, BER, identification

Question 35

Types of Testimony - Opinion from Lay Witnesses

Answer 35

Lay witnesses supply factual data, which we want in a court case. Rationally based on personal experience and their testimony would help the jury understand more

• Gov v. Knight – A witness of a gun shooting can testify that they thought the gun went off but they cannot testify about the D’s thoughts at the time

Question 36

Expert Testimony

Answer 36

Expert witnesses supply three types of testimony about ultimate facts:

• First hand observations / personal knowledge
• Hypothetical questions
• Types of facts and data reasonably relied on (brought to their attention in court)

Cross examination of an expert testimony is very broad

Who qualifies as an expert? Judge decides based on education, training, publications, experience, convince judge and impress jury/bench

If the expert is offering an opinion, they must be “reasonably certain” (no standard, judicial discretion).

Question 37

Scientific Evidence

Answer 37

Objection raised by opponent, proponent must meet standard (preponderance). If an expert witness is testifying on a novel scientific principle or theory, extra test required for reliability.

Frye Test – General Acceptance (CA)
- There is a general acceptance in the relevant scientific community and the study is done following the correct scientific principles

Daubert test – FRE/Federal Court standard
- There must be sufficient indication of reliability like: tested, accuracy rate, peer reviewed, standards, general acceptance.