Hearsay Flashcards
Give me the whole hearsay structure
- Statement is made by non-human
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Statement is admissible out-of-court statement
- Verbal acts
- show effects or knowledge on listener or reader
- show of mind (circumstantial)
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Hearsay exemptions
- Prior statement of identification after perception
- Prior inconsistent statement (no perjury)
- Prior inconsistent statement given under oath
- Admission (judicial, adoptive, vicarious)
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Hearsay exceptions
- Former testimony
- Statement against interests
- Dying declaration
- Statements of personal or family history
- Statement offered against party procuring declarant’s unavailability
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Rule 803 exceptions
- Then existing mental or physical condition (present state of mind)
- Excited utterance
- Present sense impression
- Statement for purposes of medical diagnosis or treatment
- Business / public records
- Recorded recollection
- Ancient documents
- Market reports
- Learned treaties
Hearsay definition and concept
Hearsay-an out-of-court statement offered to prove the truth of the matter asserted-is generally inadmissible, subject to certain exceptions and exemptions
What is a “statement” for hearsay purposes?
'’Statement’‘- an oral or written assertion, or non-verbal conduct intended as an assertion
>> Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)
Exemptions vs Exceptions of Hearsay
fed. rules create both exceptions and exemptions to the hearsay ban:
- Exemptions - deemed ‘‘non-hearsay’’ and thus admitted
- Exceptions - deemed hearsay, but still admitted
Beware of answer choices that turn on this distinction, such as ‘’hearsay but admissible’’ or ‘‘not hearsay and admissible’’
Is W’s own prior out-of-court statement considered hearsay?
W’s own prior out-of-court statement can be hearsay; thus, an answer that a statement is ‘‘not hearsay b/c it is W’s own statement’’ is incorrect
What happens with out-of-court statements?
Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert
Common non-hearsay out-of-court statement
- Statements of independent legal significance
- Statements offered to show their effect on the listener or reader
- Statements offered to show speaker’s knowledge
- Statements offered to show state of mind
Explain statement of independent legal significance
It’s an exemption (is not hearsay)
Statement contains legally operative words; not hearsay b/c offered to show that the statement was said, not whether it was true
>> E.g., in a contract dispute, A testifies that B told him it was a ‘‘done deal’’
Explain Statements offered to show their effect on the listener or reader
It’s an exemption (is not hearsay)
Statement is made to describe the effects on listener or reader
- in a negligence claim, a statement warning P of the injury-causing condition is admissible to show notice to P
- W testifies that the truck driver was told by radio that “your tires are loose, watch out! drive slowly”.
- “Mr. Store manager, there is a spill of salsa on the floor”
Explain Statements offered to show speaker’s knowledge
It’s an exemption (is not hearsay)
Statement is made to describe or show that the listener had knowledge
- E.g., D, charged with conspiracy claims he did not know about the crime; statement indicating D was told specifics of the crime will be admissible, indicating he knew it was planned
Explain Statements offered to show state of mind
Statements offered as circumstantial evidence of declarant’s state of mind are not hearsay
- >> E.g., statement by D, before running into traffic and causing accident, that he is invisible may be used to show insanity
>> Compare with state of mind hearsay exception, which allows hearsay statements that reflect directly (not circumstantially) on declarant’s state of mind
Homer: “I am Elvis from space” to show that the murderer was insane. This is circumstantial to show insanity, not direct evidence of that.
What are the non-hearsay exemptions
These are not hearsay exceptions, they are deemed to not be hearsay at all, therefore they admissible
- Prior statement of identification after perception
- Prior inconsistent statement (no perjury)
- Prior inconsistent statement given under oath
- Admission (judicial, adoptive, vicarious)
Admission
It is a non-hearsay exemption
Opposing party’s statements (aka Admissions), it has to be AGAINST THE PARTY only.
- Judicial (conclusive) extrajudicial (non-conclusive): (is judicial if its made in a pleading or testimony)
- Adoptive
- Vicarious admission
Adoptive admissions
It is a non-hearsay exemption
Adoptive admissions - acquiescence in another’s statement - Silence can be an admission if: Party heard, understood, and was capable of responding to a statement.
HURT - Heard Understood. Reasonable people would object and Time and opportunity to deny it
Vicarious admission
non-hearsay exemption
Vicarious admissions - admission by someone other than the person against whom the admission is offered; arises with:
- Agent/employee - statement made by an agent/employee regarding matters within the scope of agency/ employment is admissible against the principal
- Authorized speaker- statement by one authorized by a party to speak on her behalf is admissible against the party
- Partners - in relation to the P
- Co-conspirator - co-conspirator’s statements are admissible against D if made in furtherance of conspiracy
Non-hearsay exemptions, which ones can you use against whom?
- Admission can only be used against a party, Here is there is no need for an opportunity for cross-examination since you can X-E yourself.
- Prior inconsistent statement (with and w/out oath) against W and must be in trial and be cross-examined
- Prior statement of Witness of identification after perception (with and w/out oath) against W and must be in trial and be cross-examined
Prior Statements (non-hearsay exemptions)
- Prior statement of Witness of identification after perception
- Prior inconsistent statement given under oath
- Prior consistent statement - if offered to rebut a charge of fabrication, improper bias, or improper motive
Prior statement of Witness of identification after perception
- It can be made out of court (even at a police station)
- W must be at trial and opposing party must be able to cross-examine
- After accident: “Police offer! D was speeding, I saw him
Prior consistent and inconsistent statement (w and w/t oath)
- Hearsay exclusion (is not hearsay)
- Declarant is available since it is only used against someone that is W
- Depending if oath it can be used for:
- (1) if consistent: to rehabilitate or rebut an accusation of lying e.g. “I told the cops that I was not the thief when they captured me”
- (2) if inconsistent, to impeach or as evidence (if under oath or if the W is a party)
- Oath: Allows admissibility as evidence
- No oath: only available for impeachment
List of hearsay exceptions
Declarant unavailability required
- Former testimony exception
- Statements against interest
- Dying declarations
- Statements of personal or family history*
- Statements offered against party procuring declarant’s unavailability*
Declarant unavailability is immaterial:
- Present state of mind (existing mental condition)
- Excited utterances
- Present sense impressions
- Statement of physical condition (for medical diagnosis or treatment)
- Business records
- Past recollection recorded
- Ancient documents
- Market reports
- Public records or reports
- Learned treatises
- Judgments and prior convictions*
- Documents affecting property interests*
- Family records*
List of hearsay exceptions that require unavailability of the declarant
- Former testimony
- Statements against interest
- Dying declarations
- Statements of personal or family history*
- Statements offered against party procuring declarant’s unavailability*
What is unavailability for purposes of hearsay exceptions
'’Unavailability’‘ - refers to declarant’s testimony E.g., a declarant can be in court, but her testimony is ‘‘unavailable’’ b/c she asserts a valid privilege
Declarant is unavailable if either:
- Privilege -exempt from testifying due to a privilege
- Death or physical/mental sickness
- Refusal to testify despite a court order
- Lack of memory
- Absent- beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony.
Former testimony
It is a hearsay exception that requires unavailability
Testimony given by a person in an earlier proceeding or deposition may be admissible
Requirements - former testimony is admissible if:
- Declarant is currently unavailable;
- Declarant’s prior testimony was given under oath; and
- Party against whom the testimony is now offered was either:
- A party in the previous action that was able to cross-examine declarant
- A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so
Statement against interest
It is a hearsay exception that requires unavailability
A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant. It can be made by people that are no party-oponents
Requirements
- Declarant is currently unavailable;
- Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made; and
- A reasonable person would not have made the statement unless he believed it to be true
- Criminal cases requirement - there must also be corroborating circumstances indicating the trustworthiness of the statement
Statement against interests vs Statement by opposing party
- Statement Opposing Party (Admission) / Statement Against Interests
Hearsay exclusion (is not hearsay) / Hearsay exception (is a hearsay but can be admitted)
Insurance co. presents old letter of Ma to friend saying that she knows Pa kill himself / Now death 3P visits victim in hospital. “I am sorry I was drinking that day”
Declarant don’t need to be unavailable (since he is a party) / Declarant must be unavailable
Statement need not to have been against interests when made / Statement must have been against interests when made
Declarant don’t need personal knowledge of facts / Declarant need personal knowledge of facts
Declarant must be a party (that’s why is called admission) / Declarant need not to be a party
Dying declarations
It is a hearsay exception that requires unavailability
A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death
Dying declarations requirements
Requirements - statement admissible if:
- Declarant is currently unavailable
- >> Unavailability 3 death-death of declarant is not required
- The out-of-court statement was made under the belief of impending death
- >> Again, death is not required; declarant must only have believed he was dying when the statement was made
- The statement was made regarding the cause or circumstances surrounding the belief of impending death
Only available in civil cases and homicide cases (no other criminal)
Present sense impression
It is a hearsay exception that DON’T require unavailability
- A hearsay statement is admissible if it:
- Describes or explains an event or condition; and
- Is made contemporaneously with the event or immediately thereafter
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Timing is key- the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement
e. g. On the phone: “hold up, someone is at the door” to prove that the victim was not alone
Excited utterance
It is a hearsay exception that DON’T require unavailability
- A hearsay statement is admissible if it:
- ReIates to a startIing or exciting event or condition; and
- Was made while the declarant was under the stress or excitement of the event
-
Declarant’s emotional state is key- declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement
e. g. “JESUS, look how fast is that car going” to prove car speeding
Statement concerning present state of mind or condition
It is a hearsay exception that DON’T require unavailability
Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made
Items to note:
- Statement must concern a then-existing condition or mental state
- Statements of memory or belief are inadmissible b/c they do not reflect on a then-existing condition
Statement of then-existing state of mind
It is a hearsay exception that DON’T require unavailability
Usually offered to show a declarant’s intent at the time the statement was made or as a circumstantial inference that declarant’s intent was likely carried out
- Distinguish from statements offered as circumstantial evidence of declarant’s state of mind, which are not hearsay (they are not hearsay since they are not statement presented for the truth of the statement)
- Statements of intent may be admissible as circumstantial evidence tending to show that an act was committed at a later time
- I think I will sell my car to D today” To prove intent of giving it up to D*
- “I think I will see Sonia (the victim) tonight for dinner” to prove that he was the last person to saw her*
Statement of then-existing condition
It is a hearsay exception that DON’T require unavailability
Usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement.
e.g. “Oh my stomach hurts really bad, I think I am sick” to prove sickness
Statement of past physical condition for diagnosis/treatment
It is a hearsay exception that DON’T require unavailability
Statements regarding past physical condition are admissible if made to medical personnel for the purpose of diagnosis or treatment
Statement of then-existing condition vs Statement of past physical condition for diagnosis/treatment
Both are hearsay exception that DON’T require unavailability
Distinguish from statements of then-existing physical condition - statements concerning then-existing (i.e., contemporaneous) physical condition are admissible regardless of whether they are made to medical personnel
Statement of past physical condition for diagnosis/treatment requirements
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Statement must be made to medical personnel
- >> ‘‘Medical personnel’’ includes anyone involved in treatment or diagnosis; not necessarily a doctor
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Statement must be pertinent to assisting in the diagnosis or treatment of a condition
- >> Related statements (such as an admission) about an injury-causing event are usually inadmissible
- E.g., statement by declarant to an emergency room doctor that she was shot will be admissible, but the identity of the shooter will not, as it is not pertinent to treatment
- “Doc, I got stabbed with a rusty katana” To proof weapon
- “John stabbed me doctor” Not valid to blame John
Business record
It is a hearsay exception that DON’T require unavailability
Business record and public record exception
Police reports - in criminal cases, police reports or other criminal investigative reports are inadmissible as business records or public records
What is multiple hearsay?
Remember: some questions often involve multiple layers of hearsay; every layer must fall into some exception or exemption to be admissible
- E.g., minutes of a business meeting with a secretary’s notes of participants’ statements - secretary’s notes are one level of hearsay; participants’ statements are another
Public records
It is a hearsay exception that DON’T require unavailability
Public records - public office or agency records are admissible if the record:
- Describes the activities of a public office or agency;
- Describes either:
- a) Matters observed pursuant to a duty imposed by law, or
- b) Factual findings resulting from an investigation made pursuant to authority granted by law
- Is made within the author’s scope of duty; and
- Is made at or near the time of the event
Court may exclude an otherwise qualifying public record if the source of information or other circumstances indicate a lack of trustworthiness
Judgments & prior convictions (hearsay?)
It is a hearsay exception that DON’T require unavailability
Judgments & prior convictions
- Certified copies of judgments are admissible in both civil and criminal cases to prove any fact essential to the judgment
- Prior convictions are inadmissible in criminal cases against non-Ds unless used for impeachment
- Except as noted in sexual violence and child molestation cases
Learned treatises
It is a hearsay exception that DON’T require unavailability
arises with expert testimony only
- Learned treatises are accepted authority in a given field
- >> Established as reliable and accepted authority by testimony, admission, or judicial notice
- Experts can rely on learned treatises on direct exam or can be impeached with information from treatises on cross-exam
- If admissible, statements from learned treatises may only be read into evidence
- TRAP: Tested, Rate of Error, Acceptance, Peer reviewed
Family records
It is a hearsay exception that DON’T require unavailability
Family records - statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies
