Hearsay - Basic Rule and Nonhearsay Statements Flashcards
Hearsay - Definition
- 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
Hearsay - Exclusion
- 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)
Hearsay Within Hearsay
- 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
Hearsay - “Statement”
- statement = a person’s oral or written assertion OR nonverbal conduct intended as an assertion
Nonhuman Declarations
- 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
Hearsay - “Out-of-Court”
- means anything that wasn’t said at the CURRENT trial or hearing
-> i.e. still hearsay if said at some other trial/hearing
Hearsay - “Offered to Prove the Truth of the Matter Asserted”
- 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
Common Non-Truth Purposes
- 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?
Statements That Are Non-Hearsay Under Federal Rules
- 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
List of Hearsay Exemptions
- prior statements of testifying witness IF:
-> prior identification
-> prior inconsistent statement OR
-> prior consistent statement - statements by or attributable to the opposing party
Prior Statements by a Testifying Witness
- 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)
Prior Identifications
- ONLY admissible if the witness is currently testifying
-> “statement of identification” made by a NONtestifying declarant would be inadmissible unless within a hearsay exception
Statements Attributable to Opposing Party
- 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
Types of Opposing Party Statements
- judicial + extrajudicial statements
- adoptive statements
- vicarious statements
-> authorized spokesperson
-> agents + employees
-> partners
-> co-conspirators
Opposing Party Statements - Adoptive
- where a party expressly or impliedly adopts or acquiesces in the statement of another, the party’s acquiescence may be admissible against them
Opposing Party Statements - Judicial + Extrajudicial
- 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
Opposing Party Statements - Silence
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
Opposing Party - Vicarious Statements
- certain statements by another person are admissible against a party because of the relationship between them
- note though that co-parties = insufficient relationship
Opposing Party - Authorized Spokesperson
- statement of a person authorized by a party to speak on its behalf can be admitted against the party
Opposing Party - Partners
- 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
Opposing Party - Agents and Employees
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
Opposing Party - Co-Conspirators
- 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
Opposing Parties - Privies in Title and Joint Tenants
- 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)
Opposing Party Vicarious Statements - Preliminary Determinations
- 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
