Hearsay and Exceptions

Question 1

Hearsay Defined (FRE 801)

Answer 1

(1) A statement that . . . the declarant does not make while testifying at the current trial or hearing [out-of-court statement]; and
(2) A party offers it in evidence to prove the truth of the matter asserted in the statement [by the declarant]

Simplified: Out of court statement used to prove the truth of the matter asserted

Question 2

Non-Hearsay Uses of Out-of-Court Statements

Answer 2

(1) To prove the statement’s impact on someone who heard it

(2) To prove a legal right or duty triggered by—or an offense caused by—uttering the statement

(3) Words that, by their utterance, operate independently of the speaker’s belief or intended meaning, therefore, do not require testimony to exclude the words as hearsay.

(4) To impeach the declarant’s later, in-court statement

Question 3

Communicated Intent (Assertions)

Answer 3

Whether the party acted with the intent to send or create a message is the essential question to determining whether their conduct was an assertion. To determine such intent, all circumstances should be considered.

Question 4

Non-Verbal Assertions

Answer 4

(1) Non-verbal conduct, non-action, and silence: may be relevant for hearsay when relied upon to constitute the existence of the fact it is offered to prove.

(3) Non-assertive conduct: conduct without the intent to assert any statement or fact is admissible, whereas explicit assertions through conduct may be considered for hearsay.

Question 5

FRE 801(d)(2) - Non-Hearsay Exceptions

Answer 5

(A) A party’s own words are not hearsay when offered against them at trial

(B) One the party manifested that it adopted or believed to be true

(C) Statement made by a party authorized to make the statement on behalf of the party

(D) Statements made by agents within the scope of their employment

(E) Made by a co-conspirator during and in furtherance of the conspiracy

Question 6

Past Statements of a Testifying Witness – FRE 801(d)(1)(A)-(C)

Answer 6

FRE 801(d)(1)(A): prior inconsistent statements given under the penalty of perjury

FRE 801(d)(1)((B): consistent statements with the testimony
(a) Offered to rebut a charge of fabrication or action under recent improper motive or influence
(b) To rehabilitate credibility as a witness when attacked on another ground

FRE 801(d)(1)(c): to identify a party that the declarant previously perceived
Permissible so long as the opposing side is allowed to cross-examine, even if the witness does not recall the basis for the past statement of identification

Question 7

Adopted Statements Exception FRE 801(d)(2)(B)

Answer 7

(1) The adopted statement was heard and understood by the party against whom it is offered

(2) The party was at liberty to respond

(3) Circumstances naturally called for a response

(4) The Party failed to respond (or often responded but failed to deny or rebut the statement)

Silence as adoption should be considered under a totality of the circumstances

Question 8

Statements Made by Employees Exception FRE 801(d)(2)(D)

Answer 8

(1) Prove the relationship of the agency
(2) The statement was made while the relationship existed
(3) The statement made was in a matter related to their agency

Question 9

Co-Conspirator Exception FRE 801(d)(2)(E)

Answer 9

(1) Must prove a conspiracy existed (preponderance of the evidence under Rule 104)

(2) The conspiracy existed between the declarant and the party it is used against

(3) The statement was used during and in furtherance of the conspiracy

Question 10

Exceptions Regardless of the Declarant’s Availability (Generally) – FRE 803

Answer 10

(1) Present Sense Impression
(2) Excited Utterance
(3) Then-Existing Mental, Emotional, or Physical Condition
(4) Statement Made for Medical Diagnosis or Treatment
(5) Recorded Recollection
(6) Records of Regularly Conducted Activity
(7) Absence of a Record of Regularly Conducted Activity
(8) Public Records

Question 11

Exceptions are Applicable Only if the Declarant is Unavailable – FRE 804

Answer 11

(1) Former Testimony

(2) Belief of–The Cause or Circumstances of–Imminent Death

(3) Statement Against the Declarant’s Interest

(4) Statement of Personal or Family History

(5) Statement Against the Party that Wrongfully Caused the Declarant’s Unavailability

Question 12

Residual Exception Clause - FRE 807

Answer 12

(1) Rationale: “The requisites of an exception to the hearsay rule are necessity and circumstantial guarantee of trustworthiness.”

(2) Requirements:
(a) Necessity – without the facts the evidence uncovers, there is no other way to obtain evidence of the same value or from the same person; resulting in an “overall, great, impractical inconvenience”
(b) Trustworthiness – “common sense” application in light of all the surrounding circumstances