Hearsay and Confrontation Clause

Question 1

What is hearsay?

Answer 1

An out of court statement offered for the truth of the matter asserted

Question 2

What is a “statement”?

Answer 2

Intended written/oral assertion or conduct intended as an assertion

Question 3

When is there a hearsay exemption for certain prior statements of a witness?

Answer 3

When the declarant is testifying and is subject to cross-exam/redirect on the subject of the statement.

Question 4

What are the three types of prior statements of a testifying witness exempt from the general ban on HS?

Answer 4

1) Inconsistent statements made under penalty of perjury at a trial, hearing, or other proceeding.

2) Consistent statements when offered to rebut express/implied charge that the witness fabricated the statement or made it with improper motive.

3) Statements which identify a person as someone that the declarant perceived earlier.

Question 5

What types of statements are exempt from the general ban on HS as party admissions?

Answer 5

Statements made by/adopted by/acquiesced to by a party, statements by an authorized spokesperson, statements of an employee/agent, statements within the scope of partnership, statements of a co-conspirator

Question 6

What are the HS exceptions based on reliability?

Answer 6

Present sense impression, excited utterance, state of mind, medical diagnosis/treatment, recorded recollection, business records

Question 7

What are the differences between the PSI and Excited Utterances exceptions?

Answer 7

PSI = “describes” event or condition, “while or immediately after” perceiving event/condition

Excited utterance = “relates to” starting event or condition, while under stress caused by event/condition

Question 8

What is the state of mind HS exception?

Answer 8

Statement of declarant’s state of mind, emotional/sensory/or physical condition at the time the statement was made is admissible.

(Statement of memory/belief NOT admissible except to prove facts concerning a will)

Question 9

When can memory/belief be used to prove the facts remembered or believed under the present state of mind exception?

Answer 9

When the facts relate to the validity of the declarant’s will

Question 10

What are the elements of the medical diagnosis/treatment HS exception?

Answer 10

1) Statement made for the purpose of seeking medical diagnosis/treatment

2) Statement describes medical history, past/present symptoms, inception/cause of symptoms

3) Statement is reasonably pertinent to diagnosis/treatment

Question 11

What are the elements of the business record HS exception?

Answer 11

1) The record was made in the regular course of business
2) The business regularly keeps such records
3) The record was made at or near the time of the event/matter recorded
4) The entrant had a duty to record and personal knowledge of the matters recorded OR matter was transmitted to them by someone with personal knowledge and a duty to transmit

Authenticity must be established by sponsoring witness familiar with business’ record keeping (testimony or certification)

Question 12

When can a record be excluded under the business record exception, even if it meets the factual requirements?

Answer 12

If there is an indication of untrustworthiness (i.e. the source/method of preparing the record is untrustworthy or unclear).

Question 13

When is a declarant unavailable for purposes of the applicable HS exceptions?

Answer 13

1) When the declarant invokes privilege.
2) When the declarant refuses a court order to testify.
3) When the declarant testifies that they do not remember the subject matter of the statement.
4) When the declarant is dead or has a physical/mental infirmity preventing them from testifying.
5) When the declarant is beyond the reach of a court subpoena (proponent of the HS statement has been unable by reasonable means to procure attendance)

Question 14

When is the proponent of a HS statement unable to invoke the unavailability exceptions?

Answer 14

When the proponent wrongfully caused declarant unavailability to prevent declarant from testifying.

Question 15

What are the elements of the former testimony HS exception?

Answer 15

1) Testimonial statement was given under oath

2) The party against whom the statement is offered had an opportunity and similar motive to cross examine the declarant at the time the statement was given

Question 16

What does it mean for a party to have a “similar motive” for purposes of the former testimony exception?

Answer 16

Party was also a party in the prior proceeding, and the proceeding concerned the same subject matter

Question 17

What are the elements of the dying declaration HS exception?

Answer 17

-Statement offered in a homicide or civil case.

-Statement made while declarant believed death was imminent.

-Statement is about the cause/circumstances of declarant’s death.

Question 18

What are the elements of the statement against interest HS exception?

Answer 18

-Statement was against the pecuniary, penal, or proprietary interest of the declarant at the time it was made

-In a criminal case where the statement exposes declarant to criminal liability, there is corroborating evidence.

Question 19

When does the Confrontation Clause bar the admissibility of an otherwise admissible hearsay statement?

Answer 19

1) The statement is offered against the defendant in a criminal case

2) The declarant is unavailable

3) The statement is testimonial in nature

4) The defendant did not have an opportunity to cross examine the declarant at the time the statement was made

Question 20

When is a statement to law enforcement “testimonial” vs. “non-testimonial” under the Confrontation Clause?

Answer 20

Testimonial: primary purpose of the statement is to establish facts potentially relevant to a criminal prosecution. (includes summaries of forensic analyses if the effect is accusing D of criminal conduct)

Non-testimonial: primary purpose of the statement is to meet an ongoing emergency. (consider threat to victim/public, whether perpetrator is at large, type of weapon used, nature of the offense)

Question 21

What are the most common non-truth purposes for which an out of court statement can be offered?

Answer 21

Verbal acts/legally operative facts, effect on the listener, circumstantial evidence of declarant state of mind

Question 22

What is the hearsay exemption for admissions of an opposing party?

Answer 22

A statement by a party, offered against the party, is admissible nonhearsay.

Question 23

When are the statements of an employee admissible against their employer as an admission?

Answer 23

When the statement was made during the existence of the employment relationship, and was within the scope of employment.

Question 24

When is silence considered acquiescence to a statement for purposes of the HS exemption for admissions of a party opponent?

Answer 24

The statement was an accusation and

1) The party heard and understood the statement
2) The party was mentally and physically capable of responding to the statement
3) A reasonable person would have denied the accusation

Does NOT apply to silence after accusations by police.

Question 25

When are the statements of a co conspirator admissible as an admission of a party opponent?

Answer 25

When the statement was made in furtherance of the conspiracy, while the party was participating in the conspiracy

Question 26

What is the hearsay rule regarding documents affecting property interests?

Answer 26

Statements within a document affecting an interest in property are admissible, if they are relevant to the purpose of the document and there are no later dealings with the property inconsistent with the truth of the statement.