Hearsay

Question 1

Define hearsay. What is the general rule regarding hearsay.

Answer 1

DEF: Hearsay is an out-of-court (i.e. not made during the present proceeding) assertion (oral or written) by a person (called a declarant; not an animal or machine), offered to prove the truth of the matter asserted by the declarant. The key is the purpose for which the statement is offered.

RULE: Absent an exception or exclusion, HEARSAY IS INADMISSIBLE.

Question 2

What is a non-hearsay statement?

Answer 2

An out-of-court statement will not be hearsay if it is not offered to prove the truth of the matter asserted in the statement; can be admitted to show the statement’s effect on the hearer or reader.

Example: In a negligence case, where knowledge of danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of the listener.

Exam Tip - Do we care whether the declarant is telling the truth? If no, then statement is not hearsay

Question 3

What are the four principal categories of non-hearsay purposes?

Answer 3

1. Impeachment
2. Verbal Acts
3. To Show the Effect on a Person Who Heard or Read the Statement
4. Circumstantial Evidence of Speaker’s State of Mind

Question 4

In regards to non-hearsay purposes for offering a statement, what type of statement can be used to impeach a witness?

Answer 4

A prior inconsistent statement may be offered to show that the witness is an inconsistent person, without necessarily being offered to prove the truth of the statement BUT if the purpose is to prove the trust of the assertion it will be hearsay.

Question 5

What is the non-hearsay purpose of verbal acts?

Answer 5

Verbal acts are legally operative words – words with independent legal significance (when the law attaches rights and obligations to certain words simply because they are said) will not be hearsay.

**Examples: ** words of offer, repudiation or cancellation of contract; words that have the effect of making a gift or a bribe; words that are themselves an act of perjury or a criminal misrepresentation or a defamation.

Question 6

Describe the non-hearsay purpose of showing the effect on a person who heard or read the statement.

Answer 6

To Show the Effect on a Person – Usually the D – Who Heard or Read the Statement:

A statement is not hearsay if it is offered merely to prove that someone heard it (or read it), simply so the jury can understand how the statement affected the listener’s state of mind (e.g. why he believed something was true). The listener’s beliefs must be relevant in the case.

Question 7

Discuss what is meant by a Circumstantial Evidence of Speaker’s State of Mind.

Answer 7

A non-hearsay purpose.

A statement that unintentionally reveals something about the speaker’s state of mind is not hearsay. (e.g. statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge)

Question 8

Define circumstantial evidence?

Answer 8

A fact about the evidence that is being proved as a basis for an inference that another fact is true.

Question 9

What is the general rule regarding prior statements of trial witness? Are there any exceptions?

Answer 9

RULE: A testifying witness’s prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies.

• **EXCEPTIONS: **Prior statements of witnesses that are “excluded” from the definition of hearsay if the witness testifies at trial-
  
  • A prior statement of identification
  • A prior inconsistent statement, if made under oath and during a hearing or deposition
  • A prior consistent statement, if used to rehabilitate a witness and made before the recent event

Question 10

What are the top ten hearsay exceptions? Which exceptions have a threshold requirement of unavailability? Which of the exceptions rely on spontaneity to assure reliability?

Answer 10

• (1) Statements by an Opposing Party (Party Admission)
• (2) Former Testimony (unavailability required)
• (3) Forfeiture by Wrongdoing (unavailability required)
• (4) Statements Against Interest (unavailability required)
• (5) Dying Declaration (unavailability required)
• (6) Excited Utterance (spontaneity to assure reliability)
• (7) Present Sense Impression (spontaneity to assure reliability)
• (8) Statement of Then-Existing Mental, Emotional, or Physical Condition (spontaneity to assure reliability)
• (9) Statements for Purpose of Medical Diagnosis or Treatment (spontaneity to assure reliability)
• (10) Business & Public Records (spontaneity to assure reliability)

Question 11

What is the hearsay exception regarding statements by an opposing party (party admission)?

Answer 11

Statements by an Opposing Party (Party Admission):

• Any statement made by any party is admissible if it is offered against him by his opponent;
• Doesn’t mean it is always admissible, exclusion may be required by some other rule of evidence (e.g. statement made during settlement negotiations)

Question 12

Under the party admission exception to hearsay, can an employer be held responsible (vicariously) for statements made by an employee or agent?

Answer 12

Yes, a statement by an agent or employee of a party is admissible against the party if it concerns a matter within the scope of the agency or employment, and was made during the agency or employment.

Question 13

Under the party admission exception to hearsay, can a conspirator’s be vicariously responsible for statements made by another conspirator?

Answer 13

Yes, a statement by a conspirator is admissible against other conspirators if the statement was made during and in furtherance of the conspiracy.

Question 14

What is the hearsay exception regarding former testimony?

Answer 14

• The declarant must be unavailable;
• The prior statement was given in a trial or deposition AND
• Is offered against a party who, on the prior occasion, had an opportunity and a similar motive to cross-examine or to otherwise develop the testimony.

Note: The relevance of the former testimony to the current trial must be substantially similar to its relevance in the prior proceeding (so that the party had a similar motive to cross-examine)

Question 15

Does grand jury testimony fall within the former testimony exception? Why or why not?

Answer 15

Grand jury testimony does not fall within this exception because they do not afford an opportunity for cross-examination.

Question 16

What is the hearsay exception regarding forfeiture by wrongdoing? What is the burden of proof for showing a party’s wrongdoing?

Answer 16

A declarant’s out-of-court statement may be offered against:

• any party who knew the declarant would be testifying in that case or some other proceeding, AND
• who wrongfully caused that declarant to become unavailable
• for the specific purpose of preventing that witness from testifying.

Burden of proof regarding party’s wrongdoing preponderance of evidence.

Question 17

What is the hearsay exception regarding statements against interest? How is it different from statements by an opposing party (party admissions)?

Answer 17

• Declarant is unavailable AND
• The statement is against declarant’s proprietary, financial, or penal interest.

In criminal cases, the statement against penal interest must be supported by corroboration to indicate trustworthiness.

Different from party admission because “statement against interest:”

• (1) must have been against interest when made;
• (2) any person (not merely party) can make statement against interest;
• (3) personal knowledge is required; and
• (4) the declarant must be unavailable.

Question 18

What is the hearsay exception regarding dying declarations? What type of case can this exception applied?

Answer 18

• Declarant is unavailable;
• The statement was made under a belief of impending and certain death, AND
• The statement concerns the circumstances of the impending death.

Typically applies in criminal homicide (murder) or civil cases.

Question 19

What is the hearsay exception regarding excited utterance? Rationale?

Answer 19

The statement concerns an exciting or startling event and was made while the declarant was still under the stress of excitement caused by the event.

The rationale for this rule is that excitement suspends one’s capacity to fabricate.

Question 20

Under the excited utterance hearsay exception, what factors might make a statement “excited?”

Answer 20

Factors that may make a statement “excited:”

• Nature of the event
• How much time has passed
• Visual cues/clues as to the speaker’s mental state

Question 21

What is the hearsay exception regarding present sense impression? Rationale?

Answer 21

The statement is about an event and is made while the event is occurring, or immediately thereafter.

The rationale for this rule is contemporaneousness – declarant has no time to fabricate.

Question 22

What is the hearsay exception regarding Statement of Then-Existing Mental, Emotional, or Physical Condition? What is and is not included in determining whether a statement is “then-existing?”

Answer 22

This exception allows admission of a statement concerning the declarant’s then existing physical condition or mental or emotional condition (includes emotions, mental feelings, intent or future plans, sensations, bodily health).

• It DOES NOT include a statement of memory or belief about a past condition
• It DOES include statement of future intent, including an intent to do something with a third person.

The rationale is that there is little or no realistic chance that a person could be mistaken about such matters.

Question 23

What is the hearsay exception regarding Statements for Purpose of Medical Diagnosis or Treatment? Rationale?

Answer 23

Allows admission of a statement made for the purpose of diagnosis or treatment concerning present symptoms, past symptoms, or the cause of the medical condition, but only if they are reasonably pertinent to the doctor.

Rationale: Patients have an incentive to be honest and accurate to get good medical care.

Question 24

What is the hearsay exception regarding business and public records? Are there any exceptions for public records?

Answer 24

Allows admission of records of a business made in the regular course of business, the business regularly requires such records made at or about the time of the event recorded, and the contents consist of information observed by an employee of the business, or a statement that falls within some other hearsay exception.

Public Records: In addition to observations by employees of the public agency, may also include records by public employees after an accident (e.g. police officer’s conclusion about fault in an accident report).

• Public Records Exception: A police report may NOT be offered against the D in a criminal case because it poses a confrontation clause problem.

Question 25

What is required to lay the foundation for business records?

Answer 25

Laying the foundation for business records requires either:

• Call a sponsoring witness. Call a knowledgeable witness who can testify to the five elements of the business records hearsay exception (“custodian of records”)
• Self-Authentication. Submit a written certification under oath attesting to elements of business records hearsay exception.

Question 26

What is the rule regarding hearsay and the confrontation clause?

Answer 26

In criminal cases, the 6th Amendment requires that the D be “confronted” with the witnesses against him. That means the prosecution may not offer testimonial hearsay in violation of the D’s right to cross-examine the declarant.

Question 27

When is the right to cross-examine a declarant satisfied?

Answer 27

The “right to cross-examine the declarant” is satisfied if the D:

• had the chance to confront or cross-examine the declarant when the statment was made (e.g. the former testimony exception, or at the trial where the statement is being offered (e.g. prior statment of a trial witness), OR
• waived by misconduct (e.g. forfeiture by wrongdoing).

Question 28

Under the Confrontation Clause, is grand jury testimony testimonial or non-testimonial or both?

Answer 28

Yes. Grand jury testimony is testimonial.

Question 29

Under the Confrontation Clause, are Statements in response to police interrogation testimonial, non-testimonial, or both?

Answer 29

Testimonial if the primary purpose of the questioning is to establish or prove past facts potentially relevant to a criminal prosecution.

Non-Testimonial if the primary purpose of the questioning is to assist the police to meet an ongoing emergency.

Question 30

Under the Confrontation Clause, are documents such as police reports and business records testimonial, non-testimonial, or both?

Answer 30

Police reports are testimonial;

Business records are not testimonial.

Question 31

What is the rule regarding hearsay declarants and impeachment?

Answer 31

If hearsay is admitted, the opposing party may use any of the impeachment methods to attack the credibility of the hearsay declarant that could have been used if the declarant had testified live at trial.