Hearsay and Circumstances of its Admissibility Flashcards
What are the three elements that define “hearsay”?
Hearsay is defined as:
- a statement;
- made out of court; AND
- offered for the truth of the matter asserted
*The general rule is that hearsay is inadmissible unless an exception applies
What is the definition of the “out-of-court” element of hearsay?
A statment is made “out-of-court” if it is not being spoken during the legal proceeding by the tesifying witness
*if a witness is on the stand tesitfying, their own out-of-court statements may still be considered hearsay
What is the definition of the “offered for the truth of the matter asserted” element of hearsay?
-A statement is “offered for the truth of the matter asserted” if it is being offered to prove that what it is asserting is actually true and should be admitted into evidence
-if the statement is being offered for another purpose (ie, if it is irrelevant whether the statement itself is true), then it is NOT being offered for the truth of the matter asserted and is not hearsay
*ASK: if the statement itself is not true, is it still relevant for another purpose?
–> IF SO, it is not being offered for the truth of the matter asserted
What is the definition of “non-assertive conduct” and is it admissible?
-“non-assertive conduct” is an action that was NOT intended by the actor to be a substitute for words
-non-assertive conduct is admissible as non-hearsay
*for example: by fleeing from the police, the ∆ did not intend to communicate their guilt, but fleeing may nevertheless be admissible as circumstantial evidence of their guilty consciousness
What is the definition of a “legally operative fact” and is it admissible?
-or “verbal act” is a statement that has legal significance merely because it was made, regardless of whether it is true
-legally operative facts are admissible as non-hearsay
What is the definition of a statement offered to show the “effect on the listener or reader” and is it admissible?
-a statement offered to show its “effect on the listener” establishes proof of the listener’s state of mind, regardless of whether the statement itself was true
-a statement offered to show its effect on the listener is admissible as non-hearsay
*for example: the listener might have knowledge or notice of something, a particular motive or good faith, or was under duress, and their statement establishes this state, even if it is not literally true
What is the legal standard of admissibility for statements offered “as circumstantial evidence of the declarant’s state of mind”?
-statement may be offered “as circumstantial evidence of the declarant’s state of mind,” which may show their belief in what they were saying, regardless of whether it was true
-statements showing circumstantial evidence of declarant’s state of mind are admissible as non-hearsay
*For example: a statement may be offered to prove that the declarant was insane or had knowledge of something
What is a “non-human declaration” and is it admissible?
-statement made by a person, for example, a drug-sniffing dog or machine
-admissible as non-hearsay
*a police dog barking to ID a suspect is admissible as non-hearsay
What is an “admission by a party-opponent” and how is it admissible?
-is any statement made by a party to the litigation that is offered AGAINST that party
The admission does NOT have to have been against the party’s interest when made
-admissions are hearsay exemptions and admissible substantively
**In criminal cases, the prosecution is not considered a “party” for purposes of this rule, so the ∆ may NOT introduce “admissions” by the government or law enforcement against the prosecution, although the prosecution may introduce the ∆’s admissions
What is an “adoptive admission”?
Is when one party, either by words or conduct, adopts or ratifies a statement made by another person
*one’s adoptive admission must be voluntary and based on knowledge of what the other person said
What is a “vicarious admission”?
When a third party’s statement is imputed to another party because of the nature of the relationship between them
*examples of these relationships include: employee/employer, agent/principal, and business partners
What does it mean for a hearsay exception to require a declarant to be “unavailable”?
FRE 804: allows for hearsay statements to be admissible only if it is first established that the declarant is unavailable - contains 5 exceptions, which are deemed inherently trustworthy
What does it mean when the availability of a declarant is immaterial for a hearsay exception?
allows certain hearsay statement to be admissible regardless of whether declarant is available to testify as witness
-Exceptions: excited utterances, business records, and statements concerning the declarant’s then-existing mental, emotional, or physical condition
What are the ways a witness may be deemed “unavailable” for purposes of FRE 804 hearsay exceptions?
A witness is considered “unavailable” when he is:
-privileged and therefore exempt from testifying
-refusing to testify
-missing, unable to be brought in by reasonable means
-unable to remember the subject matter of the testimony
-physically or mentally unable to testify; OR
-dead
What are the 4 elements of the “former testimony” hearsay exception?
The 4 elements of admissibility for a witness’s “former testimony” at a hearing, trial, or deposition include:
- similarity of parties and subject matter;
- opportunity to develop testimony at prior hearing;
- former testimony given under oath; AND
- current unavailability of the witness
What are the four elements of the “statements against interest” hearsay exception?
A “statement against interest” requires:
- the statement to have been against the declarant’s pecuniary, proprietary, or penal interest when made;
- the declarant to have had personal knowledge of the facts;
- the declarant to have been aware that the statement was against their interest and had no motive to lie; AND
- the declarant to now be UNAVAILABLE as a witness
*an extra showing of trustworthiness is required when a statement against interest is offered as exculpatory evidence in a CRIMINAL case
What are the three elements of the hearsay deception for “dying declarations”?
A “dying declaration” requires that the declarant:
- made the statement regarding the circumstances or cause of their impending death;
- believed their death was imminent when making the statement; AND
- is now unavailable as a witness (actual death NOT required)
*a dying declaration is ONLY admissible in a CRIMINAL HOMICIDE PROSECUTION OR CIVIL CASE
What are the 4 elements of the hearsay exception for “statements of personal or family history”?
A “statement of personal or family history” requires that the declarant:
- make a statement about a family relationship (eg, birth, marriage, divorce, or death)
- be a family member or intimately associated w/ the family
- have personal knowledge of the facts or knowledge about the family’s reputation; AND
- is now unavailable as a witness
*under FRE - the statement does not need to have been made before the controversy arose
What are the two elements of the “then-existing state of mind” hearsay exception?
A hearsay statement is admissible, regardless of whether the declarant is available, IF:
- the statement is offered as evidence of the declarant’s then-existing physical, mental, or emotional condition; AND
- the declarant’s state of mind is directly in issue and material to the case OR the statement is a declaration of intent offered to show subsequent acts of the declarant
*this exception is often used to show the declarant’s intent, motive, plan, bodily pain, or sensation
What are the 3 requirements of the “excited utterance” hearsay exception?
An “excited utterance” requires the declarant to have made the hearsay statement:
- in response to a startling event;
- while still under the stress of such excitement; AND
- relating to the startling event or condition
*the declarant’s availability as a witness is immaterial
What are the two elements of the “present sense impression” hearsay exception?
A “present sense impression” is admissible if a declarant makes a statement:
- describing or explaining an event or condition; AND
- during or immediately following the event or condition
*the declarant’s availability as witness is immaterial
What are the two elements of the “statement made for medical diagnosis or treatment” hearsay exception?
A “statement made for medical diagnosis or treatment” inadmissible as hearsay exception IF:
- it was made for the purpose of diagnosis or treating a medical condition; AND
- it describes one’s medical history, symptoms (current or past), or their general cause
*typically the statement is made to a medical professional (eg, physicians, nurses, hospital attendants, EMTs) BUT that is not a requirement
What are the 5 elements of the “past recollection recored” hearsay exception?
A “past recollection recored” is an admissible hearsay exception IF:
- the witness’s memory cannot be revived;
- at one time, the witness had personal knowledge of the matter;
- the record was either adopted or made by the witness;
- the record was made when the matter was fresh in the witness’s mind; AND
- the record is an accurate reflection of the witness’s knowledge
*a recorded recollection may be read into evidence but the document itself may not be received as an exhibit UNLESS introduced by the adverse party
What are the 4 elements of the “business records” hearsay exception?
A business record may be admissible as a hearsay exception IF the record was prepared;
- during regularly conducted business activities (ie, not for purposes of litigation)
- as party of the business’s customary practices
- by someone w/ a duty to make such entries AND
- by someone w/ personal knowledge or transmitted to the preparer by someone w/ personal knowledge
*a “business” is any organization, including churches, hospitals, and schools
-a police report MAY qualify as a business record in CIVIL cases BUT NOT CRIMINAL CASES
What may be admitted under the public records hearsay exception?
A public record (record, report, statement, or data compilation) is admissible IF it describes:
- activates of a public office or agency;
- factual matters observed w/in the scope of a legal duty; OR
- factual findings from an investigation authorized by law
*if no such record exists, tis absence may give rise to an inference that the event did not occur because if it had, a record would have been created
Is a certified copy of a prior judgment admissible to prove that judgment was entered?
YES.
A certified copy of a prior judgment is ALWAYS admissible to prove that judgment was entered
*whether the prior judgment is admissible to prove other facts depends on the nature of both the prior and subsequent proceedings
What is required for ADMISSIBILITY of an ancient document under the hearsay exception AFTER authentication?
-the ancient document must have been prepared before Jan 1, 1998 to be admitted substantively under the FRE 803(16) hearsay exception
-this sit he requirement for substantive admission of the document; the requirement that the document be at least 20 years old applies to authentication prior to substantive admissibility
*for example, a document written in 2000, although more than 20 years old today, was prepared after jan 1, 1998 and would therefore be inadmissible under the hearsay exception
What are the 2 requirements of the learned treatise hearsay exception?
A learned treatise (ie, a scientific or authoritative work) is substantively admissible IF:
- established as reliable authority; AND
- used to either support (on direct exam) or attack (on cross) the testimony of an expert witness
What are the 3 elements of the “catchall” hearsay exception?
The FRE provide a residual or “catchall” exception for the admission of hearsay statements that do not fall under another category IF:
- the statement is trustworthy
- the statement is necessary, or more probative of a material fact than any other evidence that can be reasonably produced such that its admission will serve “interests of justice” AND
- notice is given to the adversary regarding its introduction into evidence
*the declarant’s availability as a witness is immaterial
What are the 4 requirements for excluding otherwise admissible hearsay under the Confrontation Clause in a criminal case?
Under the Confrontation Clause, a hearsay statement is INADMISSIBLE, even if it would otherwise be admissible, IF:
- it is being offered against a ∆ in a criminal case;
- the hearsay declarant is unavailable as a witness;
- the statement was “testimonial” in nature; AND
- the ∆ did not have the opportunity to cross-examine the declarant on the statement before trial
*when a hearsay declarant is present and subject to cross-examination at trial, there is no Confrontation Clause problem w/ admitting the hearsay statement
HYPO:
If an accused, in order to exculpate himself, introduces a statement made by a declarant that was against the declarant’s penal interest, is an additional showing required to admit the statement?
YES.
A criminal ∆ must also show “corroborating circumstance that clearly indicate [the statement’s] trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability”
*many courts also requires the protection to offer corroborating evidence if introducing a statement against penal interest by an unavailable declarant to inculpate the ∆
HYPO:
A family’s doctor, now unavailable as a witness, made a statement about the birth of a child in that family, will their statement be admissible?
YES.
FRE allows a statement regarding personal or family history to be admissible as a hearsay exception IF the declarant is so intimately associated w/ the family that they are likely to have accurate information
*most states, however, still require the declarant to be related by blood or marriage
What are the 3 elements of the hearsay exception for statement offered against a party who wrongfully caused the declarant’s unavailability?
A hearsay statement is admissible against a party under this exception IF:
- that party wrongfully caused the declarant’s unavailability;
- that party intended to make the declarant unavailable; AND
- the declarant is now, in fact, unavailable as a witness
*a party forgoes the hearsay objection when they intentionally prevented the declarant from being available to testify
What is the difference between a “statement of memory or belief” and the hearsay exception for “then-existing state of mind”?
The then existing state of mind exception admits statements tending to prove then-existing conditions that were present when the statement was made, such as the declarant’s intent or plan
BY CONTRAST - a statement of memory or belief is about facts not present when the statement is made
*if a witness states, “I think I left my coat at home,” this statement would not be admissible in court to prove that the witness left their coat at home but may be admissible to show they planned to travel to their home after making the statement
What is required to prove the “declarations of present physical condition” hearsay exception?
-a declarant’s spontaneous statements about his current (NOT PAST) physical symptoms are admissible as a hearsay exception, regardless of his purpose in making the statement
-the declarant’s availably as a witness is immaterial
*compare to statements made for medical diagnosis or treatment which may be about past symptoms
When will police reports be admissible as a hearsay exception?
Police reports are generally admissible in civil cases under the business or public records exceptions
*in CRIMINAL CASES - however - police reports do not qualify as business or public records and are INADMISSIBLE against the accused
When is a prior judgment in a criminal case admissible in a subsequent action?
-generally, a prior FELONY CRIMINAL CONVICTION is admissible as a hearsay exception in a subsequent civil OR criminal case to prove any fact essential to the judgment
-a prior criminal ACQUITTAL is inadmissible in subsequent actions
*even if a criminal conviction is admissible as a hearsay exception, it may still be excluded as improper character evidence
When is a prior judgment from a civil case admissible in a subsequent action?
Whether a prior civil judgment is admissible depends on the nature of the subsequent action:
-CRIMINAL cases: ALWAYS inadmissible
-CIVIL cases: GENERALLY inadmissible, unless offered under an exception, such as to prove matters of personal or family history or land boundaries
May a learned treatise be received as an exhibit by a jury?
NO
Portions of the treatise may be READ into evidence, but the treaties itself may NOT be received as an exhibit by the jury
What are the 3 hearsay exceptions that allow evidence of a person’s reputation?
reputation evidence is admissible, regardless of the declarant’s availability, to establish:
- personal or family history
- community land boundaries or general history; AND/OR
- a person’s character (specific rules apply to this use of reputation evidence)
How is a business record authenticated?
-typically, a custodian or other qualified witness may testify to the identity of the record and how it was prepared
-this is not necessary, however, if a qualified witness testifies that it meets all the criteria of a business record (ie, it is self-authenticating)
*if no record exists, it is permissible to infer that the event did not occur because if it had, a record would have been created during the course of business
What is considered a “statement” for purposes of hearsay?
something is considered a “statement” if it is EITHER:
-an oral or written assertion OR
-a person’s conduct that is INTENDED to be an ASSERTION (ie, assertive conduct)
*for example: a nod of one’s head or other similar body language is considered “assertive conduct”
HYPO:
If a π offers a ∆’s previous statement, “I was in California,” to prove that the ∆ was capable of talking when they made it, is it considered hearsay?
NO.
Whether the ∆ was actually IN California is irrelevant; the relevance is in the fact that they could physically speak, so the statement would not be considered hearsay
*the ∆ could have said any statement, regardless of whether it was true, and it would be admissible for the purpose of showing they could speak and would be considered non-hearsay
What is the hearsay classification for statements that are “not hearsay”?
statements that are not being offered for the truth of their contents and therefore will not be excluded on hearsay grounds (although might be inadmissible for other reasons, such as prejudice)
What are hearsay EXEMPTIONS under FRE?
Statements exempted under FRE as non-hearsay are statements that WOULD have been considered hearsay under CL, but FRE removed them from definition of hearsay and admits then as substantive evidence
What is the difference between a non-hearsay statement offered as “circumstantial evidence of the declarant’s state of mind” and the “state of mind exception” to the hearsay rule?
A statement offered for the non-hearsay purpose of showing the declarant’s state of mind if indirect and circumstantial, whereas the state of mind exception allows direct evidence of the declarant’s then-existing state of mind
*in application, the difference between these two classification is one of little consequence
What is “double hearsay” and when is it admissible?
-Double hearsay (hearsay w/in hearsay): is when a hearsay statement contains another hearsay statement w/in it
-the testimony containing double hearsay will ONLY be admissible only if BOTH hearsay statements have grounds for admissibility
*a witness testifies that she had screamed, “No! Betty told me that wouldn’t happen!” Both the “No!” statement and Betty’s statement would require separate bases for admissibility
Which 3 types of prior statements are hearsay EXEMPTIONS?
3 types of prior witness statements that are EXEMPTED from the definition of hearsay (considered NON-hearsay) include:
- prior inconsistent statements
- prior consistent statements
- prior statements of identification
When is a prior inconsistent statement admissible as a hearsay exemption?
If a prior inconsistent statement was made under the penalty of perjury at a prior proceeding or deposition, it may be offered into evidence not only to impeach the witness not he stand but also as substantive evidence
**this differs from prior inconsistent statements offered only to attack a witness’s credibility, not for substantive purposes
What are the 2 ways a “prior CONSISTENT statement” is admissible as a hearsay exemption?
A “prior consistent statement” may be admissible substantively to:
- rebut an express or implied accusation of recent fabrication or improper motive IF made prior to the motive to lie came about; OR
- rehabilitate a witness whose credibility has been impeached on a ground unrelated to character or truthfulness, such as sensory impairment
When is a “prior identification” admissible as a hearsay exemption?
A prior statement of identification by a witness may be admissible substantively as a hearsay exemption if the statement identifies a person as someone the declarant perceived earlier
What are the 3 requirements for admitting “an admission by silence” into evidence?
An accused party will “adopt” and admission by silence IF:
- they were present, heard, and understood the statement;
- were physically and mentally capable of denying it; AND
- a reasonable person in the same situation would have denied the accusation
*an admission by silence is a type of “adoptive admission”
What are the 2 requirements for admitting a “vicarious admission between an employee/employer or agent/principal” into evidence?
A statement made by an employee or agent may be admissible against the employer or principal IF the statement:
- was made during the existence of the relationship; AND
- concerns a matter w/in the scope of the declarant’s agency or employment
What is required for admitting a statement made by one partner in a business against another partner into evidence?
One partner’s statements regarding any matter w/in the scope of their business partnership will be binding and admissible against other partners
*the co-partners are considered agents of one another
What are the 2 requirements for admitting a “vicarious admission between co-conspirators” into evidence?
An admission made by a co-conspirator will be admissible against another co-conspirator IF it was made:
- during the declarant’s participation in the conspiracy AND
- in furtherance of the conspiracy
*this rule reflects the principle that all co-conspirators are liable for the acts and statements of the other; however, if no conspiracy is charged, special hearsay problems may arise
Which 3 requirements establish the identity of the PARTIES element of the “former testimony” hearsay exception?
A witness’s “former testimony” is only admissible if the party it is being offered against:
- was an actual party to the earlier proceeding (or, in a civil action, a predecessor in interest);
- had an opportunity to examine the witness at the prior proceeding; AND
- has a current motive similar to they motive for developing the witness’s prior testimony
*grand jury testimony generally is NOT admissible under the hearsay exception for former testimony but may be admissible non-hearsay as a prior inconsistent statement
What is required to establish the identity of the ISSUES element of the “former testimony” hearsay exception?
The issue in both proceedings must be substantially the same, ie, they relate to the same overall subject matter
*the COA does NOT have to be identical; the goal is to ensure that the scope cross-examination is the same
Define “statement against interest” hearsay exception
A statement against interest is admissible if at the time it was made, it was against the declarant’s pecuniary, proprietary, or penal interest
Which 3 types of “interest” satisfy the “statement against interest” hearsay exception?
The statement satisfies this hearsay exception if, at the time it was made, it was against the declarant’s:
- pecuniary (financial interest)
- proprietary (property interest) OR
- penal interest (criminal liability)
*the declarant must have personal knowledge of the immediate and substantial risk to their interest when making the statement
What are the 3 differences between an admission and a statement against interest?
- an ADMISSION: requires the declarant to be a PARTY and that the statement be introduced against that party (or be a vicarious admission by a co-conspirator), where’s a STATEMENT AGAINST INTEREST requires the declarant to be UNAVAILABLE
- An ADMISSION does NOT have to be “against interest” to be admissible
- an ADMISSION does not need to have been supported by personal knowledge
*a party who wants to introduce a statement by a non-party into evidence may not treat it as an admission, but may offer it as a statement against interest if it meets the elements
Is a statement of memory or belief admissible for the truth of the matter asserted?
NO.
A declarant’s statement expressing a memory or belief, when offered for the truth of the fact remembered or believed is generally NOT admissible
*statements of memory or belief will only be admissible if relating to the terms of the declarant’s will
HYPO:
If an accused makes a statement in response to police questioning that was intended to elicit information proving past events regarding a criminal case, is the statement considered “testimonial”?
YES.
This type of statement is considered testimonial because it intended to assert or disclose information and could be a substitute for in-court testimony
HYPO:
May the prosecution introduce an incriminating statement by a non-testifying co-defendant against the accused at a criminal trial?
NO.
Using a non-testifying co-∆’s incriminating statement against a ∆ at trial presumably violates the ∆’s 6th Amendment right to confrontation
*the Confrontation Clause requires that the OG ∆ be given an opportunity to cross-examine the co-∆ whose confession would be used against the OG ∆
May post-arrest or pre-arrest silence be considered an adoptive admission?
Post-arrest silence may NOT be used as a basis for an adoptive admission BUT pre-arrest silence MAY
HYPO:
Statements may be offered for the truth of the matter or to prove something other than truth. If an out-of-court statement is being offered to prove something other than its truth, is it hearsay?
NO.
An out-of-court statement being offered to prove something other than its truth is NON-hearsay
**when you encounter a question, CONSIDER the PURPOSE an out-of-court statement is being offered
**NON-HEARSAY MAY BE ADMITTED W/OUT A HEARSAY EXCEPTION
What are three examples of an out-of-court statement being introduced for a purpose other than to prove the truth of the matter asserted?
Three examples include:
- statements offered to show effect on the listener;
- verbal acts of independent significance; AND
- statements offered to show declarant’s state of mind
Define hearsay
An out-of-court statement asserted to prove the matter asserted
What are the 4 exemptions to the hearsay rule?
- admissions
- prior inconsistent statements
- prior consistent statements
- prior statements of identification
What hearsay exceptions require that the declarant be unavailable?
- former testimony
- dying declaration
- statements against interest
- statements of personal or family history AND
- statements offered against a party that wrongfully caused the declarant’s unavailability
Define former testimony hearsay exception (declarant must be UNAVAILABLE)
Former testimony given by a person in an earlier proceeding or deposition is admissible when the declarant is unavailable, the declarant’s testimony was given under oath, and there is adequate similarity of parties and subject matter such that the parties had a similar motive and opportunity to develop the testimony
**civil cases allow a predecessor in interest who was present at the earlier proceeding to develop the testimony
Define dying declaration hearsay exception (UNAVAILABLE)
A dying declaration is an admissible out-of-court statement by a declarant who believed death was IMMINENT; made the statement about the cause or circumstance of their IMPENDING death; and is now unavailable
Define past recollection recorded hearsay exception (UNAVAILABLE)
A past recollection recorded is when a record is read into evidence to refresh a witness’s recollection for purposes of testifying.
The record must be about a matter that the witness once knew about but now cannot recall well enough to testify fully and accurately; was created when the matter was fresh in the witness’s memory; and accurately reflects the witness’s knowledge
*the record may only be received as an exhibit if OFFERED BY THE ADVERSE PARTY
When may past recollection recorded be admitted as an exhibit?
ONLY WHEN OFFRED BY THE OPPOSING/ADVERSE PARTY
Define “excited utterance” hearsay exception
An excited utterance is a statement relating to a startling event made while the declarant is under the stress or excitement of the event
Define “present sense impression” hearsay exception
A present sense impression is a statement describing or explaining an event or condition made while or immediately after perceiving it
What is the difference between a present sense impression and an excited utterance?
A present sense impression requires spontaneity, given the fact that the statement must be made while the declarant perceives the event or immediately thereafter
whereas an excited utterance does NOT require SPONTANEITY as long as the statement was made while experiencing the stress or excitement of the event
Define the Sixth Amendment Confrontation Clause
Under the Confrontation Clause of the 6th Amendment, an accused has the right to be confronted w/ the witnesses against them
*this right applies ONLY TO CRIMINAL PROSECUTION NOT CIVIL CASES OR OTHER PROCEEDINGS
What is the difference between testimonial and non-testimonial statements for purposes of the Confrontation Clause?
Testimonial: a statement is testimonial when the purpose of the interrogation is to establish past events potentially relevant to a later criminal prosecution
Non-Testimonial: whereas a statement is non-testimonial when the primary purpose of the interrogation is to enable the police to assist in an ongoing emergency
Define the “statement for purposes of medical diagnosis or treatment” hearsay exception
A statement made for the purposes of medical diagnosis or treatment is a statement made by a declarant for or pertaining to medical diagnosis or treatment of the declarant’s injury, eg, description of medical history, past or present symptoms
Define the “then-existing statements of mental or physical condition” hearsay exception
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory or physical condition (such as mental feeling, pain, or bodily health) is admissible as an exception to hearsay
