Hearsay

Question 1

Give me the whole hearsay structure

Answer 1

1. Statement is made by non-human
2. Statement is admissible out-of-court statement
   
   1. Verbal acts
   2. show effects or knowledge on listener or reader
   3. show of mind (circumstantial)
3. Hearsay exemptions
   
   1. Prior statement of identification after perception
   2. Prior inconsistent statement (no perjury)
   3. Prior inconsistent statement given under oath
   4. Admission (judicial, adoptive, vicarious)
4. Hearsay exceptions
   
   1. Former testimony
   2. Statement against interests
   3. Dying declaration
      
      1. Statements of personal or family history
      2. Statement offered against party procuring declarant’s unavailability
5. ​​Rule 803 exceptions
   
   1. Then existing mental or physical condition (present state of mind)
   2. ​Excited utterance
   3. Present sense impression
   4. Statement for purposes of medical diagnosis or treatment
   5. Business / public records
   6. Recorded recollection
   7. Ancient documents
   8. Market reports
   9. Learned treaties

Question 2

Hearsay definition and concept

Answer 2

Hearsay-an out-of-court statement offered to prove the truth of the matter asserted-is generally inadmissible, subject to certain exceptions and exemptions

Question 3

What is a “statement” for hearsay purposes?

Answer 3

'’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)

Question 4

Exemptions vs Exceptions of Hearsay

Answer 4

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’’

Question 5

Is W’s own prior out-of-court statement considered hearsay?

Answer 5

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

Question 6

What happens with out-of-court statements?

Answer 6

Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert

Question 7

Common non-hearsay out-of-court statement

Answer 7

1. Statements of independent legal significance
2. Statements offered to show their effect on the listener or reader
3. Statements offered to show speaker’s knowledge
4. Statements offered to show state of mind

Question 8

Explain statement of independent legal significance

Answer 8

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’’

Question 9

Explain Statements offered to show their effect on the listener or reader

Answer 9

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”

Question 10

Explain Statements offered to show speaker’s knowledge

Answer 10

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

Question 11

Explain Statements offered to show state of mind

Answer 11

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.

Question 12

What are the non-hearsay exemptions

Answer 12

These are not hearsay exceptions, they are deemed to not be hearsay at all, therefore they admissible

1. Prior statement of identification after perception
2. Prior inconsistent statement (no perjury)
3. Prior inconsistent statement given under oath
4. Admission (judicial, adoptive, vicarious)

Question 13

Admission

Answer 13

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

Question 14

Adoptive admissions

Answer 14

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

Question 15

Vicarious admission

Answer 15

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

Question 16

Non-hearsay exemptions, which ones can you use against whom?

Answer 16

• 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

Question 17

Prior Statements (non-hearsay exemptions)

Answer 17

• 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

Question 18

Prior statement of Witness of identification after perception

Answer 18

• 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

Question 19

Prior consistent and inconsistent statement (w and w/t oath)

Answer 19

• 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

Question 20

List of hearsay exceptions

Answer 20

Declarant unavailability required

1. Former testimony exception
2. Statements against interest
3. Dying declarations
4. Statements of personal or family history*
5. Statements offered against party procuring declarant’s unavailability*

Declarant unavailability is immaterial:

1. Present state of mind (existing mental condition)
2. Excited utterances
3. Present sense impressions
4. Statement of physical condition (for medical diagnosis or treatment)
5. Business records
6. Past recollection recorded
7. Ancient documents
8. Market reports
9. Public records or reports
10. Learned treatises
11. Judgments and prior convictions*
12. Documents affecting property interests*
13. Family records*

Question 21

List of hearsay exceptions that require unavailability of the declarant

Answer 21

1. Former testimony
2. Statements against interest
3. Dying declarations
4. Statements of personal or family history*
5. Statements offered against party procuring declarant’s unavailability*

Question 22

What is unavailability for purposes of hearsay exceptions

Answer 22

'’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:

1. Privilege -exempt from testifying due to a privilege
2. Death or physical/mental sickness
3. Refusal to testify despite a court order
4. Lack of memory
5. Absent- beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony.

Question 23

Former testimony

Answer 23

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:

1. Declarant is currently unavailable;
2. Declarant’s prior testimony was given under oath; and
3. Party against whom the testimony is now offered was either:
   
   1. ​A party in the previous action that was able to cross-examine declarant
   2. 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

Question 24

Statement against interest

Answer 24

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

1. Declarant is currently unavailable;
2. Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made; and
3. 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

Question 25

Statement against interests vs Statement by opposing party

Answer 25

• 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

Question 26

Dying declarations

Answer 26

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

Question 27

Dying declarations requirements

Answer 27

Requirements - statement admissible if:

1. Declarant is currently unavailable
   
   • >> Unavailability 3 death-death of declarant is not required
2. 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
3. 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)

Question 28

Present sense impression

Answer 28

It is a hearsay exception that DON’T require unavailability

• A hearsay statement is admissible if it:

1. Describes or explains an event or condition; and
2. Is made contemporaneously with the event or immediately thereafter

• 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

Question 29

Excited utterance

Answer 29

It is a hearsay exception that DON’T require unavailability

• A hearsay statement is admissible if it:

1. ReIates to a startIing or exciting event or condition; and
2. 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

Question 30

Statement concerning present state of mind or condition

Answer 30

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

Question 31

Statement of then-existing state of mind

Answer 31

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*

Question 32

Statement of then-existing condition

Answer 32

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

Question 33

Statement of past physical condition for diagnosis/treatment

Answer 33

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

Question 34

Statement of then-existing condition vs Statement of past physical condition for diagnosis/treatment

Answer 34

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

Question 35

Statement of past physical condition for diagnosis/treatment requirements

Answer 35

1. Statement must be made to medical personnel
   
   • >> ‘‘Medical personnel’’ includes anyone involved in treatment or diagnosis; not necessarily a doctor
2. 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

Question 36

Business record

Answer 36

It is a hearsay exception that DON’T require unavailability

Question 37

Business record and public record exception

Answer 37

Police reports - in criminal cases, police reports or other criminal investigative reports are inadmissible as business records or public records

Question 38

What is multiple hearsay?

Answer 38

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

Question 39

Public records

Answer 39

It is a hearsay exception that DON’T require unavailability

Public records - public office or agency records are admissible if the record:

1. Describes the activities of a public office or agency;
2. 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
3. Is made within the author’s scope of duty; and
4. 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

Question 40

Judgments & prior convictions (hearsay?)

Answer 40

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

Question 41

Learned treatises

Answer 41

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

Question 42

Family records

Answer 42

It is a hearsay exception that DON’T require unavailability

Family records - statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies