Hearsay

Question 1

What is Hearsay?

Answer 1

An out-of-court statement offered to prove the ruth of the matter asserted

Question 2

Common Non-Hearsay Uses

Answer 2

(1) VERBAL ACTS - statement offered to prove that statement was made
(2) EFFECT ON LISTENER - statement offered to show effect on the person who heard it
(3) STATE OF MIND - statement offered as circumstantial evidence of the declarant’s mental state

Question 3

Prior Inconsistent Statements

Answer 3

Excluded from hearsay rule

Must have been made under oath

Question 4

Prior Consistent Statements

Answer 4

Excluded from hearsay rule

Can be used to rehabilitate witness when accused of recent fabrication or improper motive

Can be used as proof of the truth of the matter asserted

Question 5

Prior Statements of Identification

Answer 5

Excluded from hearsay rule

Previous out-of-court identification of a person (after perceiving that person) is admissible

Declarant MUST testify and be subject to cross-examination

Question 6

Admissions of a Party Opponent

Answer 6

If statement being introduced against a party is the party’s own prior statement, then not hearsay

Question 7

Adoptive Admission

Answer 7

Statement made by someone else, which is then expressly or impliedly adopted by party

Question 8

Vicarious Admissions

Answer 8

Statement made by one person imputed to another based upon relationship between them

Ex: agent, authorized speaker, co-conspirators

Question 9

Hearsay Exceptions Declarant’s Availability Immaterial: Past Recollection Recorded

Answer 9

When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:

(1) Record concerns a matter about which the witness once had knowledge;
(2) Record was prepared or adopted by the witness when the matter was fresh;
(3) Record accurately reflects the witness’s knowledge; and
(4) Witness testifies he has insufficient memory of the event to testify fully and accurately

Witness may READ it to jury, but it is not introduced into evidence

Question 10

Confrontation Clause

Answer 10

Criminal D have right to be confronted with the witnesses against them

Testimonial statements can only be admitted against criminal D if:

(1) Declarant now UNAVAILABLE; and
(2) D had PRIOR OPPORTUNITY TO CROSS-EXAMINE declarant

Question 11

How to Address Hearsay Problem on Exam

Answer 11

(1) Determine whether statement is hearsay by definition
(2) See whether it falls within definition of non-hearsay
(3) Determine whether declarant is unavailable in order to use that set of hearsay exceptions
(4) See whether the remaining exceptions might allow admission of the hearsay statement