Hearsay

Question 1

What is hearsay?

Answer 1

A out of court statement by a declarant introduced for the truth of the matter asserted. The statement can be verbal or nonverbal conduct intended as an assertion and excludes any “statement” by an animal or machine

Question 2

What are non hearsay purposes for out of court statements?

Answer 2

(1) The statements themselves are legally operative facts (e.g., words of contract or defamation)
(2) The statements are offered to show their effect on the listener or reader.
(3) The statements are offered as circumstantial evidence of the state of mind of the declarant (knowledge, insanity).

Question 3

What are the FRE’s exemptions to the common law definition of hearsay?

Answer 3

(1) A declarant witness’s prior statements

(2) An opposing party’s statements

Question 4

What are the four types of declarant-witness prior statements that qualify as non-hearsay?

Answer 4

(1) Prior inconsistent statements
(2) Prior consistent statements used to rebut a charge of recent fabrication
(3) Statements used to rehabilitate a witness
(4) Statements of identification

Question 5

What are the five types of opposing party statement that qualify as non-hearsay?

Answer 5

The statements must all be offered against the opposing party and are:

(1) Statements made by the party in an individual or representative capacity.
(2) Adoptive admissions.
(3) Statements by authorized spokespersons.
(4) Statements by a party’s employee or agent on a matter within the scope of their employment or agency while the relationship was ongoing.
(5) Statements by co-conspirators.

Question 6

When is an adoptive statement admissible non-hearsay?

Answer 6

A statement may be admitted against the party if the party expressly or impliedly adopted the statement as its own. Silence when confronted with an accusation may be an adoptive admission where:

(1) they heard and understood the statement;
(2) they were physically/mentally capable of denying the statement, and
(3) a reasonable person would have denied the accusation.

Note that silence to a cop in a criminal case is almost never admission.

Question 7

Is co-party status enough to vicariously attribute one party’s statements to another?

Answer 7

No

Question 8

What are the five hearsay exceptions conditioned on unavailability of the declarant?

Answer 8

(1) Former testimony
(2) Dying declaration
(3) Statements against interest
(4) statements of personal or family history
(5) statements offered against a party procuring the defendant’s unavailability

Question 9

When is a declarant unavailable?

Answer 9

(1) exempt from testifying due to privilege
(2) refuses to testify concerning the statement despite a court order
(3) testifies that they do not remember the subject matter
(4) is dead or incapacitated
(5) is absent, beyond reach of court subpoena, and the proponent is unable to procure their presence by process or other reasonable means

Question 10

When is former testimony of an unavailable declarant admissible?

Answer 10

If (1) the testimony was under oath at a Prior trial, hearing, or deposition, (2) in which the party against whom the testimony is being offered [or, in a civil case, their predecessor in interest (privity)] had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross or redirect [this means that the party against whom the testimony is offered must have been a party in the former action and it must have involved the same subject matter]

Note: grand jury proceedings do not offer an opportunity for cross-examination and testimony before a grand jury is inadmissible under this exception (but is for prior inconsistent statements)

Question 11

When is a statement against interest by an unavailable witness admissible?

Answer 11

When it was against their pecuniary, proprietary or penal interest when made, such that a reasonable person in their position would have made it only if they believed it to be true. Must have personal knowledge of facts and be aware that it is against interest when made.

Question 12

When is a dying declaration of an unavailable witness admissible?

Answer 12

In a homicide prosecution or in any civil actin, a statement made by an unavailable declarant is admissible if (1) they believed their death was imminent when they made it; and (2) it concerned the cause or circumstances of what they believed to be their impending death based on personal knowledge (no speculation/opinion)

Declarant doesn’t have to actually be dead but must be unavailable `

Question 13

When is a statement of personal or family history by an unavailable witness admissible?

Answer 13

Statements concerning births, marriages, divorces, relationship, genealogical status, etc, are admissible if (1) the declarant is a member of the family in question or intimately associated, and (2) the statements are based on personal knowledge of the facts or the family’s reputation,

Question 14

When is a unavailable declarant statement offered against a Party procuring their unavailability admissible?

Answer 14

Admissible when offered against a party who engaged in or acquiesced in wrongdoing that intentionally procured the defendant’s unavailability

Question 15

What are the hearsay exceptions where the declarant’s availability is immaterial?

Answer 15

Present sense impression
Excited utterance
Present state of mind
Declarations of physical condition 
Business records and the absence thereof
Official records and the absence thereof; records of vital statistics
Judgments
Ancient documents
Documents affecting property interests
Learned treatises 
Family records
Market reports 
[residual exception]

Question 16

When is the excited utterance exception applicable?

Answer 16

Related to a startling event made while under the stress of the excitement of the event, before the declarant had time to reflect on it

Question 17

When is the present sense impression exception applicable?

Answer 17

A statement describing or explaining an event while or immediately after the declarant witnesses it

Question 18

When is the present state of mind/physical condition exception applicable?

Answer 18

Where the declarant makes a statement of their then-existing state of mind (motive, intent, plan) or an emotional, sensory or physical condition. Not retroactive — statements of memory or belief not admissible under this exception

Question 19

When is a statement made for medical diagnosis or treatment admissible?

Answer 19

Distinct from present state exception, a statement made for diagnosis or treatment is admissible when describing medical history, symptoms, and their causes where reasonably pertinent to diagnosis or treatment. Usually to a medical professional about your own condition but may be to anyone and may be about someone else’s condition

Question 20

When is the business records exception applicable?

Answer 20

(1) Writings/records of a business (any business/organization/etc)
(2) made in the regular course of business (of a kind the business regularly keeps)
(3) made at or near the time of the event recorded
(4) contents were within the personal knowledge of the entrant/someone with a duty to report such matters to the entrant

• *often raises multiple hearsay issue
• *must be authenticated

Question 21

How is the foundation of a business record proven?

Answer 21

Call the sponsoring witness to testify — does not have to be author but could be custodian or person otherwise knowledgeable of business, or,

Affidavit/unsworn declaration attesting to the elements

Question 22

When is the public records exception applicable?

Answer 22

Records admissible are those

(1) setting forth the activities of the office or agency (e.g., payroll)
(2) matters observed pursuant to a duty imposed by law,
(3) findings of fact or opinion resulting from an investigation authorized by law (but not investigative findings against a defendant in a criminal case — ok in civil, or against govt in crim)

Question 23

When may the absence of a public record or business record be introduced as evidence?

Answer 23

Where it was regular practice to record all such matters, the absence of the record may prove the non occurrence/non existence Of the event

For public records, a custodian or other qualified person must certify that they diligently searched for and failed to find the record.

Confrontation issue: Prosecution must afford defendant ability to demand presence of person who prepared the certification, and thus must notify at least 14 days before trial and defense must object in writing within 7 days of receipt of notice. Confrontation issue particularly with DNA results, blood alcohol results, etc

Question 24

When are judgments admissible?

Answer 24

A certified copy of a judgment is always admissible as proof of the judgment

Question 25

When does the ancient documents exception apply?

Answer 25

Statements in authenticated docs prepared before 1998

Question 26

When does the documents affecting property interests exception apply?

Answer 26

Deed/will/etc admissible if the statement is relevant to the document’s purpose. Exception inapplicable if later dealings with the property are inconsistent with the trust of the statement or the intent of the document

Question 27

When does the learned treatise exception apply?

Answer 27

If (1) called to the attn of/relied on by expert witness and (2) established as reliable authority by that expert, another expert, or judicial notice. May be read into evidence but not received as an exhibit

Question 28

When are family records admissible?

Answer 28

Statements of fact concerning personal family history contained in family bibles, jewelry engravings, tombstone engravings, etc

Question 29

When are market reports and similar published compilations admissible?

Answer 29

If generally used and relied upon by the public or by persons in a particular occupation

Question 30

When is reputation evidence admissible?

Answer 30

Can be admissible to prove character, personal/family history, land boundaries or the general history of a community

Question 31

When will the Confrontation Clause exclude otherwise admissible hearsay?

Answer 31

(1) offered against the accused in a criminal case
(2) declarant is unavailable
(3) statement is testimonial in nature
(4) accused had no opportunity to cross-examine the testimonial statement prior to trial

(defendant forfeits confrontation right if they committed a wrongful act intended to keep witness from testifying)

Question 32

When is a statement testimonial?

Answer 32

a statement is testimonial in nature if the primary purpose of the questioning was to establish or prove events for later prosecution, but not if the questioning was to aid in an ongoing emergency

Question 33

When are forensic results testimonial?

Answer 33

Affidavits, certificates, reports summarizing the findings of forensic analysis that have the effect of accusing the defendant of criminal conduct (like fingerprint results) are testimonial and may not be admitted unless the defendant had an opportunity to cross examine the report’s author. insufficient for author’s supervisor to testify

no confrontation issue if not used for hearsay purpose

Question 34

Under the rule classifying prior witness statements as non-hearsay, what are prior inconsistent statements?

Answer 34

Out-of-court statements given under penalty of perjury in another trial, hearing, proceeding, or deposition which are inconsistent with the declarant-witness’s testimony in this trial are not hearsay.

Question 35

Under the rule classifying prior witness statements as non-hearsay, when are a witness’s prior consistent statements admissible as non-hearsay?

Answer 35

Out-of-court statements which are consistent with the declarant-witness’s current testimony are admissible for two purposes:

(1) To rebut a charge that the declarant recently fabricated that testimony or made it with improper motive.
(2) To rehabilitate a declarant-witness’s credibility on other grounds than recent fabrication or improper motive (like to rebut allegations that the witness had some sort of sensory deficiency inhibiting their perception or had made previous inconsistent statements).

Question 36

Under the rule classifying prior witness statements as non-hearsay, when are prior statements of identification by a declarant-witness admissible as non-hearsay?

Answer 36

Out-of-court identifications identifying a person as someone the declarant perceived earlier are not hearsay. This includes identifications made in photo arrays or live visual line-ups.

Question 37

When are opposing party statements generally admissible?

Answer 37

(1) When made by a party, and

2) Offered against that party (this is not a means of getting your own statements in

Question 38

When may a statement by a co-conspirator be admitted as a non-hearsay opposing party statement?

Answer 38

Where there is evidence the conspiracy existed and both were members and the statement was made in the course of and in furtherance of the conspiracy.