Hearsay

Question 1

What is Hearsay?

Answer 1

An out-of-court statement by the declarant offered to prove the truth of the matter asserted.

Question 2

What constitutes a statement?

Answer 2

EITHER:

+ Oral or written assertion that is intended as communication

OR

+ Assertive conduct (conduct intended to communicate as a substitute for words)

Statement must be a HUMAN statement.

Question 3

Is evidence offered for its effect on the listener hearsay?

Answer 3

NO. Effect on the listener (notice, motive, etc.) is a permissible use of evidence. We are not concerned with the declarant.

Question 4

What are verbal acts and are they hearsay?

Answer 4

Words themselves can give rise to a cause of action (words that have independent legal significance or legally operative facts).

Not hearsay. Not offered for its truth. Truth of the statement is irrelevant; the fact that they were uttered is what we are proving.

Ex: transactional words (contract, deed, will, judgment) or tortious words (defamatory words in a libel/slander action)

Question 5

Hearsay EXEMPTIONS (aka NOT considered hearsay at all)

Answer 5

+ Statement by a party opponent

+ Co-conspirator’s statements

+ Prior statements (in Civil and Criminal cases)

Question 6

When can an admission by silence constitute a statement by a party opponent?

Answer 6

An admission by silence requires that a reasonable person would have denied the statement.

NOT applicable where D has been given Miranda warnings; can’t comment on post-Miranda warning silence.

Question 7

When can an adoptive admission constitute a statement by a party opponent?

Answer 7

There must be evidence sufficient to show that the party heard and understood the statement and adopted it as her own.

Question 8

What is an authorized admission by a party opponent?

Answer 8

A statement by a party’s agent or representative (agency can be express or implied).

Question 9

When is a vicarious admission admissible as a statement of a party opponent?

Answer 9

A statement of a party’s employee offered against the party.

Statement must:
+ be made during the existence of the employment relationship;
AND
+ concern a matter within the scope of employment.

Question 10

When are a co-conspirator’s statements exempted from the hearsay rule?

Answer 10

Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists.

Question 11

Requirements for co-conspirator statement exemption

Answer 11

Requirements:

(1) existence of a conspiracy = prelim fact that must be proven to the court by a preponderance of the evidence;
(2) declarant was a member of the conspiracy;
(3) statement was made “in furtherance” of the conspiracy;

AND

(4) the statement was made “during the existence of” the conspiracy.

Question 12

Requirements for prior statements to be exempt from the hearsay rule

Answer 12

3 types of prior statements, and EACH requires:

(1) declarant to testify at the trial or hearing;
(2) declarant to be subject to cross-examination concerning the statement;

AND

(3) the statement must be either:
(a) prior inconsistent statement (offered for its truth);
(b) prior consistent statement; OR
(c) prior statement of ID

Question 13

When is a prior inconsistent statement admissible as exempt from the hearsay rule?

Answer 13

A prior inconsistent statement is permitted to be offered for its TRUTH if it is “sworn” (i.e. subject to penalty of perjury (under oath) at a trial, deposition, or “other proceeding”).

Declarant must testify at trial or hearing and declarant must be subject to cross concerning statement.

Question 14

When is a prior consistent statement admissible as exempt from the hearsay rule?

Answer 14

A prior consistent statement is used to rehabilitate:

+ the witness after an inference of recent fabrication has been raised [LIMITED use, statement must predate motive to lie]

OR

+ the declarant’s credibility as a witness when attacked on another ground.

Declarant must testify at trial or hearing and declarant must be subject to cross concerning statement.

Question 15

When is a prior statement of ID admissible as exempt from the hearsay rule?

Answer 15

A prior statement of identification of a person made after perceiving him can be admissible.
The purpose is to buttress the reliability of in-court identifications as compared with those made at an earlier time under less suggestive conditions.

Declarant must testify at trial or hearing and declarant must be subject to cross concerning prior ID.

Question 16

Hearsay Exceptions when the availability of the declarant is immaterial

Answer 16

+ Present sense impression

+ Excited utterance

+ Then-existing mental, emotional, or physical condition

+ Statements for purposes of medical diagnosis or treatment

+Past recollection recorded

+ Records of regularly conducted activity (business records exception)

+ Public records and reports

+ Statements in ancient documents

+ Learned treatises

Question 17

Hearsay Exceptions when the availability of the declarant is material

Answer 17

+ Former testimony

+ Statement made in belief of impending death (dying declaration)

+ Statements against interest

Question 18

“Unavailable” triggering events

Answer 18

PRISM

P - Privilege
R - Refusal
I - Incapability
S - Subpoena
M - Memory

Privilege - asserting a privilege
Refusal - refusing to testify despite a court order
Incapability - incapacity due to death or then-existing physical/mental illness
Subpoena - absence of witness despite good-faith attempt to procure attendance
Memory - witness testifies as to a lack of memory.

Burden to prove unavailability is on the proponent of the testimony.

Question 19

What is a Present Sense Impression and when is it admissible?

Answer 19

Hearsay exception. Availability of declarant IMMATERIAL.

Statement describing or explaining an event/condition made while or immediately after perceiving it.

Characteristics and requirements:
+ Spontaneity (timing)
+ Declarant need not be known or available
+ An unexcited utterance (boring subject matter)
+ Can be oral or in writing (911) tape

Question 20

When is a statement about a Then-Existing Mental, Emotional, or Physical Condition admissible?

Answer 20

Hearsay exception. Availability of declarant IMMATERIAL.

A statement of declarant’s then-existing physical, emotional, or mental condition is admissible if relevant to show declarant’s state of mind.
+ need not be made to a medical person
+ look for prospective statements of intent (forward looking)

Exception does NOT include:
+ past sensations
+ statements of memory or belief, generally

Question 21

When is a Statement for Purposes of Medical Diagnosis or Treatment admissible?

Answer 21

Hearsay exception. Availability of declarant IMMATERIAL.

Includes statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation, or the cause.
+ statement can be made to any medical personnel or family member
+ statement must be one that is useful for diagnosis or treatment.

NOT included - statement admitting or assessing fault

Question 22

When is a Past Recollection Recorded admissible?

Answer 22

Hearsay exception. Availability of declarant IMMATERIAL.

Used where W lacks current memory of the event.
PREREQUISITE - must have attempted (and failed) to refresh the witness by a leading question or writing.

Requirements:
+ writing/record is read into evidence (writing itself NOT received as an exhibit unless offered by adverse party)
+ memorandum must have been made “while the matter was fresh” in the W’s mind
+ authentication - W must testify that writing accurately reflects W’s prior knowledge (i.e. W made or adopted the statement).

Question 23

What are the rights of the adverse party in response to a past recollection recorded being used?

Answer 23

+ Inspect the writing

+ cross-examine with it

+ show it to the jury for comparison

+ introduce relevant portions into evidence

Question 24

When are Records of Regularly Conducted Activity admissible?

Answer 24

Hearsay exception. Availability of declarant IMMATERIAL.

A record/report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of the business to make such a record or report.

Question 25

When is a Public Record or Report admissible?

Answer 25

Hearsay exception. Availability of declarant IMMATERIAL.

Similar foundation as business records, except the proponent need not show that the record was routinely made at or near the time of the event (i.e. FAA report issued years after a plane crash).

Report must be prepared pursuant to a duty imposed by law, which includes records/reports of public offices or agencies, setting forth:

(a) activities of a public office or agency
(b) matters observed pursuant to a duty imposed by law as to which there was a duty to report.

Does NOT include matters observed by police if offered by the prosecution (D can offer report and it will be admitted).

Question 26

When are Statements in Ancient Documents admissible?

Answer 26

Hearsay exception. Availability of declarant IMMATERIAL.

Admissible if found in a place where these items are typically found (i.e. archives, library, possibly a shoebox).

Includes statements in a document that are in existence for 20 years or more and its authenticity is established.

Question 27

When are Learned Treatises admissible?

Answer 27

Hearsay exception. Availability of declarant IMMATERIAL.

Foundation authoritativeness established by: judicial notice, expert testimony, or stipulation.

Subject area: MASH (Medicine, Art, Science, History)

Treatise is read to the jury, not physically given to the jury.

Question 28

When is Former Testimony admissible?

Answer 28

Hearsay exception. Declarant must be UNAVAILABLE.

May be admitted for its truth if:

(a) declarant made statement under oath;
(b) given by a witness in the same or a different but related proceeding, or in a deposition (former action must involve same subject matter, but not necessarily same cause of action or plaintiff);

AND

(c) the party against whom the evidence is being offered must have had an opportunity and similar motive to examine the W and develop testimony on direct, cross-examination, or redirect.

Question 29

When is a Dying Declaration admissible?

Answer 29

Hearsay exception. Declarant must be UNAVAILABLE.

Made about the cause of death. Unavailable declarant. Belief of death. Admissible in any civil case or a criminal case IF charge is homicide.

Judge determines whether declarant subjectively believed death was imminent. Declarant need not have died from incident, but declarant must be unavailable to testify.

Question 30

When is a Statement Against Interest admissible?

Answer 30

Hearsay exception. Declarant must be UNAVAILABLE.

Requirements:
\+ personal knowledge
\+ unavailable W
\+ non-party (generally)
\+ statement was against interest when made (pecuniary, proprietary, penal)

Question 31

Confrontation Clause limitations on Hearsay admissibility

Answer 31

In a criminal case where the declarant is unavailable, “testimonial” hearsay statement will be INADMISSIBLE unless D is given an opportunity to cross-examine the declarant.

“Testimonial evidence” = primary purpose of police interrogation is to prove past events relevant to later criminal prosecution.

“Non-testimonial evidence” = primary purpose of statement is to aid police during ongoing emergency.