Hearsay

Question 1

6 Common Nonhearsay Utterances

Answer 1

(1) circumstantial evidence of declarant’s state of mind
(2) verbal act/operative fact: a statement the making of which has substantive legal significance and is therefore NOT hearsay
(3) verbal parts of acts: where the utterance establishes the legal character of an act that it accompanies and is therefore NOT hearsay
(4) statements offered to show the effect on one who heard/read the statement
(5) when the value of the statement derives from the fact that the words were spoken, not from the truth of the matter asserted
(6) where words/conduct are not assertive or are assertive of something other than what they are being offered to prove

Question 2

801(d)(1): Prior Witness-Declarant Statements threshold inquiries and types

Answer 2

 threshold requirements:
• (1) the witness must testify at the current trial/hearing, AND

• (2) the witness must be subject to cross concerning the prior statement

TYPES
• (1) the statement is inconsistent with the witness’s trial testimony,

• (2) the statement is consistent with the witness’s trial testimony, OR
• (3) the statement identifies a person as someone the witness perceived earlier

Question 3

801(d)(1): Prior Witness-Declarant Statements inconsistent statements

Answer 3

o must have been made in a prior formal proceeding (trial, hearing, depo, grand jury) under oath
o note: a statement NOT made in a formal proceeding may still be admissible if you are using it for another purpose (like impeaching the witness)

Question 4

801(d)(1): Prior Witness-Declarant Statements consistent statements

Answer 4

o need not have made prior statement in a formal proceeding

o must be offered:
 (a) to rebut an express/implied charge or recent fabrication or improper influence or motive, OR
 (b) to rehabilitate declarant’s credibility as a witness when attacked on another ground (like inconsistency, faulty memory, etc.)

o prior consistent statement must have been made before the alleged improper influence/motive arose

Question 5

801(d)(1): Prior Witness-Declarant Statements (identification)

Answer 5

 does not need to be an in-person ID (can ID someone from a photo)
 **general descriptions like “he’s tall and blonde like the robber” are insufficient – you need a proper identification
 the prior ID need not be consistent with the witness’s testimony

Question 6

801(d)(2): Elements/Types of Prior Opposing Party Statements

Answer 6

• (1) must be offered against the party, AND
• (2) must fall into one of these categories

o	(a) the party’s OWN statement
o	(b) adoptive admission
o	(c) agency statement
o	(d) vicarious admission, OR
	made by pty’s agent/employee (with authority or not) on a matter within the scope of that relationship, AND while the relationship existed
o	(e) admission of a co-conspirator

• (3) note: the statement must be considered but does not by itself establish the declarant’s authority under (c), the existence/scope of the relationship under (d), or the existence of the conspiracy/participation in it under (e)

Question 7

R803(1): Present Sense Impression

Answer 7

o subject matter reqs:
 there must have been an event/condition
 the statement must describe/explain that event/condition, AND
 dec must have perceived it (PK)

o timing req: dec must have made the statement “while or immediately after perceiving it”
 generally must be 5min or less
 once dec has had time to reflect/forget, too much time has passed

Question 8

R803(2): Excited Utterance

Answer 8

o subject matter reqs:
 must have been a startling event/condition
 the statement must relate to that event/condition, AND

o timing req: dec must have been under the stress/excitement that it caused when he made the statement
 this will be fact-specific – could be days so long as the stress/excitement persists
 factors:
• lapse of time between the event and the dec
• the age of dec
• the physical and mental state of dec
• the characteristics of the event
• the subject matter of the statements

Question 9

R803(3): Then-Existing Mental/Emotional/Physical Condition (categories and rules on timing)

Answer 9

o Categories
 (1) statements of present bodily condition
 (2) statements of present SOM or emotion offered to prove a SOM or emotion of dec that is “in issue” in the case
 (3) statements of present SOM (intent/plan/design) offered to prove subsequent conduct of dec in accordance with the SOM
 (4) SOM statements of a testator, offered on certain issues in will cases (i.e. must relate to will execution, revocation, identification, or terms)

**distinguish from circumstantial evidence (where the first inference doesn’t match the statement) which is just flat-out not hearsay

o backward-looking statements are inadmissible

o forward-looking statements (a present SOM about the future) are admissible both to prove that a speaker had such an intention AND that the person acted upon that intention (Hillmon doctrine)

Question 10

R803(4): Statement Made for Medical Diagnosis/Treatment (elements and timing req)

Answer 10

o Elements:
 (1) made for purposes of diagnosis/treatment
 (2) must be reasonably pertinent to diagnosis/treatment, AND
 (3) must fall within one of these:
• describing medical history
• past/present symptoms/pain/sensations
• inception/general character of cause/external source

o **distinguish from R803(3): because now, statements related to the past and present are allowed

Question 11

R803(5) Past Recollection Recorded (elements and rules on admission of the document)

Answer 11

o Elements
 (1) witness must have PK about the matter,
 (2) witness must now not be able to recall well enough to testify fully and accurately (i.e. 612 has failed),
 (3) the memo or record of the witness’s knowledge must have been made or adopted by the witness when the matter was fresh in his memory, AND
 (4) the memo or record must reflect the witness’s prior knowledge accurately

o **if admitted – the record may be read into evidence by the witness, but may be received as an exhibit (allowed into the jury room) only if offered by an adverse party

Question 12

R803(6): Presence of Business Records (elements)

Answer 12

o rule: a record of an act, event, condition, opinion, or diagnosis, if:
 (1) the record was made at or near the time by (or from info transmitted by) someone with knowledge,
• **“by or from” means that this exception can cover multiple layer of hearsay
 (2) the record was kept in the course of regularly conducted activity of a business,
 (3) making the record was a regular practice of that activity,
 (4) all of these conditions are shown by the testimony of a custodian or other qualified witness under R902(11)/(12), AND
 (5) the opponent does not show that the source of the info or the method/circumstances of preparation indicate a lack of trustworthiness

Question 13

R803(7): Absence of Business Records

Answer 13

rule: evidence that a matter is not included in a record as described above is admissible if:
 (1) the evidence is admitted to prove that the matter did not occur/exist,
 (2) a record was regularly kept for a matter of that kind, (i.e. meets the R803(6) reqs), AND
 (3) the opponent does not show that the possible source of the info or other circumstances indicate a lack of trustworthiness

Question 14

R803(8): Public Records (elements and breakdown of diff types)

Answer 14

o rule: a record/statement of a public office if:
 (1) it sets out:

• (a) the office’s internal activities,
o ex) payroll files, purchase receipts, etc.

• (b) observations made under a legal duty to report, OR
o **but not including a matter observed by law-enforcement in a criminal case
o most common is a court reporter transcript
o applies only to records that describe observed data without analysis leading to factual findings
o must be in connection w an investigation (can’t be a routine, non-adversarial observation)

• (c) the results/factual findings of a public investigation, AND
o **but not to be used against ∆ in a criminal case
o this category is ultimately broader than (b)
o includes reports (need not be based on a statement made by a public office) of an evaluative nature that produce factual findings after an investigation (ex – administrative finding about employment discrim)
o includes opinions based on factual findings
o will not extend to legal conclusions

 (2) the opponent does not show that the source of info or other circumstances indicate a lack of trustworthiness

Question 15

difference between public records and business records exceptions

Answer 15

 it is not necessary to show that the public record was regular or made at/near the time of the event recorded
 public records are admissible without a sponsoring witness so long as they have been authenticated (see R902 self-authentication)

Question 16

R803(9)

Answer 16

o. a record of birth, death, or marriage if reported to a public office in accordance w a legal duty

Question 17

R803(10)

Answer 17

o rule: testimony – or a certification under R902 – that a diligent search failed to disclose a public record/statement if the testimony/cert is admitted to prove that:
 (1) the record/statement does not exist, OR
 (2) a matter did not occur/exist, if a public office regularly kept a record/statement for a matter of that kind
 **in a criminal case, a prosecutor who intends to offer a cert must provide written notice of that intent at least 14 days before trial, and ∆ has 7 days after receipt to object (subject to court discretion

Question 18

R803(21)

Answer 18

 reputation concerning character is admissible to prove the truth of the matter asserted

Question 19

R804(a): when is a declarant deemed unavailable?

Answer 19

• (1) a claim of privilege
• (2) refusal to testify (in the face of an actual court order)

• (3) a claim of lack of memory (regardless of whether they truly remember)
o **only applies if dec is unable to remember the subject matter – the fact that he does not remember actually making the statements themselves is irrelevant
o can also apply if W remembers but not in sufficient detail

• (4) death or physical/mental illness or infirmity
o for illness and infirmity, the court must consider both the duration (need not be permanent) and the severity

• (5) absence from the trial or hearing and inability of the proponent to procure declarant by process or other reasonable means:
o (a) dec’s attendance in the case of a hearsay exception under R804(b)(1) or (6), OR
o (b) dec’s attendance or testimony (i.e. depo) in the case of a hearsay exception under R804(b)(2)-(4)
o **requires a genuine, good faith effort – it is gonna be fact-specific but will require more than just a letter and a phone call (can’t be perfunctory)

• **the list is nonexclusive because a child who is “incompetent” to testify on account of age is also “unavailable”
• **unavailability is ultimately determined by R104(a)

Question 20

R804(b): what evidence is NOT excluded so long as the declarant is deemed unavailable?

Answer 20

• (1) Former Testimony
• (2) Dying Declaration
• (3) Statement Against Interest
• (4) Statement of Personal or Family History
• (6): Statement Offered Against a Party That Wrongfully Caused Dec’s Unavailability

Question 21

difference between R804(b)(3) statements against interest and 801(d)(2) party admissions

Answer 21

 R804(b)(3) must be made against interest of dec when made and need not be made by a pty
• dec must have PK
• dec must be unavailable
• designed to permit the use of OOC statements only if they were against the interest of dec when made

 R801(d)(2) only applies to statements of parties (or their reps) and applies to any statement of a party, whether against interest or not
• no PK requirement
• unavailability is not required
• designed to permit the use of OOC statements only when offered against the pty

Question 22

R806: Attacking and Supporting Declarant’s Credibility

Answer 22

 rule: when a hearsay statement – or a statement described in R801(d)(2)(c), (d), or (e) – has been admitted in evidence, the declarant’s credibility may be attacked (and then supported) by any evidence that would be admissible for those purposes if the declarant had testified as a witness

Question 23

R807: The Residual Hearsay Exception (“catchall exception”) - elements

Answer 23

 Elements: under the following conditions, a hearsay statement is not excluded by R802 even if the statement is not admissible under an exception/exemption in R803 or R804
• (1) proponent must give the adverse party reasonable notice of the intent to offer the statement, including its substance and the declarant’s name

• (2) hearsay statement must be supported by sufficient guarantees of trustworthiness
o the evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial (i.e. not by corroboration)
o **the restrictive definition of “statement” from Williamson applies here

• (3) statement must be more probative on the point for which it is offered than any other evidence that the proponent could obtain through reasonable effort
• (4) offered as evidence of a material fact (i.e. should not be used for trivial/collateral matters)
• (5) admitting it will best serve the purposes of these rules and the interests of justice

Question 24

804(b) former testimony (elements)

Answer 24

• (1) Former Testimony
o Elements
 the testimony must have been given as a witness at a trial, hearing, or lawful depo, whether given during the current proceeding or a different one
 for criminal trials – the pty against whom the evidence is now offered must have had an opportunity to develop it by direct, cross, or redirect AND a similar motive to develop the testimony
 for civil trials – the pty against whom the evidence is now offered or a predecessor in interest must have had an opportunity AND a similar motive to develop W’s testimony

Question 25

804(b) dying declaration (elements)

Answer 25

• (2) Dying Declaration
o Elements
 (a) the case in which the evidence is offered must be a civil action or a homicide prosecution,
• cannot be attempted murder or manslaughter…if it is a criminal case, it must be homicide
 (b) the statement must have been made by dec while believing that his death was imminent, AND
• **subjective
 (c) the statement must concern the cause or circumstances of what dec believed to be impending death

Question 26

804(b) statements against interest (elements)

Answer 26

• (3) Statement Against Interest
o a statement that a reasonable person (objective) in the dec’s position would have made only if the person believed it to be true because, when made, it was so contrary to dec’s proprietary or pecuniary interest or had so great a tendency to invalidate the dec’s claim against someone else or to expose dec to civil or criminal liability
o in a criminal case: the contrary interest must be supported by corroborating circumstances that clearly indicate its trustworthiness
o key note: this rule does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory (Williamson v US)

Question 27

804(b) statement of personal/family history (elements)

Answer 27

• (4) Statement of Personal or Family History
o a statement about dec’s own birth, adoption, marriage, etc., even though dec had no way of acquiring PK about that fact, or
o a statement about another person concerning any of these facts, as well a death, if dec was related to the person by blood, adoption, or marriage or was so intimately associate w the person’s family that the dec’s info is likely to be accurate

Question 28

804(b) statement offered against party that wrongfully cause declarant’s unavailability (rule)

Answer 28

• (6): Statement Offered Against a Party That Wrongfully Caused Dec’s Unavailability
o rule: a statement offered against a pty that wrongfully caused (or acquiesced in wrongfully causing) the declarant’s unavailability as a witness, and did so intending that result is admissible

Question 29

R807: The Residual Hearsay Exception (“catchall exception”) - competing views

Answer 29

2 Primary Approaches
• (1) Near Miss Approach (minority): the residual exception may be used to admit a statement that is the type covered by one of the R803 or R804 exceptions, but that fails to meet all the requirements of that rule
o i.e. hearsay exceptions do not work like a game of darts – a near miss is a miss

• (2) Discretionary Approach (majority): the residual exception may only be used for evidence that is not of a type covered by one of the R803 or R804 exceptions
o i.e. there should be an analogy between the operation of the hearsay exceptions and a game of darts – a near miss still has value