Hearsay - Basic Rule and Nonhearsay Statements

Question 1

Hearsay - Definition

Answer 1

• a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted

Question 2

Hearsay - Exclusion

Answer 2

• excluded IF:
  -> hearsay
  -> no appropriate exception applies AND
  -> other side appropriately objects
• rationale - no opp to cross-examine, + no opp for jury to really witness the statement firsthand (harder to judge credibility)

Question 3

Hearsay Within Hearsay

Answer 3

• an out-of-court statement that incorporates other hearsay within it
• admissible only if BOTH the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule
• check for declarant who repeats or transcribes another person’s statement

Question 4

Hearsay - “Statement”

Answer 4

• statement = a person’s oral or written assertion OR nonverbal conduct intended as an assertion

Question 5

Nonhuman Declarations

Answer 5

• no such thing as animal or machine hearsay -> the statement must be made by a person
• testimony about what radar gun “said” or what a drug-sniffing dog did is NOT hearsay

Question 6

Hearsay - “Out-of-Court”

Answer 6

• means anything that wasn’t said at the CURRENT trial or hearing
  -> i.e. still hearsay if said at some other trial/hearing

Question 7

Hearsay - “Offered to Prove the Truth of the Matter Asserted”

Answer 7

• basically, might look like hearsay but NOT if offered for some purpose other than truth
  -> might be relevant just by virtue of having been spoken or written, regardless of whether true
• if offered for non-truth purpose, doesn’t matter that def wasn’t cross-examined when they made the statement

Question 8

Common Non-Truth Purposes

Answer 8

• verbal acts or legally operative facts (ex: words of contract, defamatory words)
• offered to show effect on listener/reader
• circumstantial ev of declarant’s state of mind (ex: trying to prove insanity)
  -core q: does it matter whether the def is telling the truth in the statement?

Question 9

Statements That Are Non-Hearsay Under Federal Rules

Answer 9

• meet the basic definition of hearsay, butt specifically designated as “not hearsay” under the Federal Rules
• often referred to as “exclusions” or “exemptions”
• admissible as substantive ev b/c not hearsay

Question 10

List of Hearsay Exemptions

Answer 10

• prior statements of testifying witness IF:
  -> prior identification
  -> prior inconsistent statement OR
  -> prior consistent statement
• statements by or attributable to the opposing party

Question 11

Prior Statements by a Testifying Witness

Answer 11

• GENERALLY hearsay + inadmissible (even if the witness is now testifying, they can’t tell you what they previously said)

UNLESS the witness is testifying, subject to cross-examination, and the statement is:
- prior statement of identification of a person as someone the witness perceived earlier (even if witness can’t remember making the identification)
- prior statement is INCONSISTENT with declarant’s in-court testimony AND was given under oath at a prior proceeding OR
- prior statement is CONSISTENT with dec’s in-court testimony and:
1) is offered to rebut charge that witness is lying or exaggerating b/c of some motive OR
2) offered to rehabilitate witness whose credibility has been impeached on some other ground (other than general attack on character for truthfulness, such as inconsistency or fault memory)

Question 12

Prior Identifications

Answer 12

• ONLY admissible if the witness is currently testifying
  -> “statement of identification” made by a NONtestifying declarant would be inadmissible unless within a hearsay exception

Question 13

Statements Attributable to Opposing Party

Answer 13

• opposing party’s statement does NOT count as hearsay
• aka admissions of party opponent, though need not have been against interests
• personal knowledge is not required

Question 14

Types of Opposing Party Statements

Answer 14

• judicial + extrajudicial statements
• adoptive statements
• vicarious statements
  -> authorized spokesperson
  -> agents + employees
  -> partners
  -> co-conspirators

Question 15

Opposing Party Statements - Adoptive

Answer 15

• where a party expressly or impliedly adopts or acquiesces in the statement of another, the party’s acquiescence may be admissible against them

Question 16

Opposing Party Statements - Judicial + Extrajudicial

Answer 16

• party’s formal judicial statements (pleadings, stipulations, etc.) are conclusive + can’t be contradicted during trial
• informal judicial statements made during testimony + extrajudicial statements are not conclusive + can be explained
• formal judicial statement in one case can be admitted against same party in a different case

Question 17

Opposing Party Statements - Silence

Answer 17

If party remains silent in the face of an accusatory statement, silence may be considered implied acquiescence to the truth of that statement if the following reqs are met:
- the party heard + understood the statement
- the party was physically + mentally capable of denying the statement AND
- a reasonable person would’ve denied the accusation

• note that silence in the face of accusations by police in a criminal case is almost never considered an admission of a crime

Question 18

Opposing Party - Vicarious Statements

Answer 18

• certain statements by another person are admissible against a party because of the relationship between them
• note though that co-parties = insufficient relationship

Question 19

Opposing Party - Authorized Spokesperson

Answer 19

• statement of a person authorized by a party to speak on its behalf can be admitted against the party

Question 20

Opposing Party - Partners

Answer 20

• once a partnership is shown to exist, statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners

Question 21

Opposing Party - Agents and Employees

Answer 21

Statement by an agent or employee is admissible against the principal if the statement:
1) concerned any matter within he scope of their agency or employment AND
2) was made during the existence of the agency or employment relationship

Question 22

Opposing Party - Co-Conspirators

Answer 22

• statements of one conspirator, made to a third party IN FURTHERANCE of the conspiracy to commit a crime or civil wrong at time when def was participating in the conspiracy are admissible against co-conspirators
• court has to determine existence of the conspiracy AND opposing party’s participation in it by preponderance of the evidence standard

Question 23

Opposing Parties - Privies in Title and Joint Tenants

Answer 23

• in most state courts, statements of each joint tenant are admissible against the other, and statements of a former owner of real property made at the time they held title are admissible against those claiming under them
• DON’T qualify as nonhearsay under Fed Rules, but may be admissible under an exception (ex: statement against interest)

Question 24

Opposing Party Vicarious Statements - Preliminary Determinations

Answer 24

• before admitting out-of-court statement as a vicarious statement of an opposing party, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered
• court must first determine whether the dec was authorized to speak for the party, was the party’s agent/employee, or co-conspirator
• in making such determinations, court must consider contents of the statement, but the statement alone is not sufficient to establish the required relationship
  -> need some independent evidence