Hearsay & Circumstances of Its Admissibility

Question 1

Definition of hearsay

Answer 1

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is only admissible if it falls under an exception or exclusion. A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertion.

Question 2

Multiple Hearsay

Question 3

What is non-hearsay?

Answer 3

If an out of court statement is not offered to prove the truth of the matter asserted, the statement is not hearsay and is admissible.

1. Verbal act sof independent legal significance
2. Effect on the listener/reader
3. Circumstantial Evidence of Declarant’s State of Mind
4. Impeachment

Question 4

Non-Hearsay - Effect on the Listener/Reader

Answer 4

Statements offered to show the effect on the listener or reader are generally offered to show that a person had notice of a fact or to dispute motive or intent. Thus, they are not offered to prove the truth of the matter asserted and are admissible.

Question 5

Non-Hearsay - Verbal Acts of Independent Legal Significance

Question 6

Non-Hearsay - Circumstantial Evidence of a Speaker’s State of Mind

Question 7

What is a hearsay exclusion?

Answer 7

Hearsay is not admissible unless it falls under a valid exception or is excluded from the hearsay rule. A hearsay exclusion is a statement that could be used to prove the truth of the matter asserted, but is nonetheless excluded from the hearsay rule.

1. Admissions by a Party Opponent
   (a) Adoptive Admissions (b) Vicarious admissions (c) Co-Conspirator Admissions
   (2) Prior Statement by a Declarant-Witness

Question 8

Hearsay Exclusion - Opposing Party Statement (Admissions)

Question 9

Opposing Party Statements - Adoptive Admission

Question 10

Opposing Party Statements - Vicarious Admissions

Answer 10

Statements made by an authorized spokesperson and agent within the scope of and during the agency relationship

Question 11

Statements made by co-conspirators during and in furtherance of a conspiracy are considered vicarious admissions and are imputed on the party opponent if: (1) a conspiracy existed between the declarant and the defendant; (2) the statement was made during the conspiracy; (3) the statement was in furtherance of the conspiracy; and (4) the conspiracy is proven by independent evidence outside the statements themselves.

Question 12

Hearsay Exclusion - Prior Statement by a Declarant-Witness at Trial

Answer 12

A prior statement by a declarant-witness is deemed non-hearsay if if: (1) the declarant is testifying at trial; (2) the declarant is subject to cross-examination; and (2) the prior statement:

(a) Is one in which the declarant previously identified a person
(b) Was inconsistent with prior testimony and was given under penalty of perjury in a prior court proceeding;

OR

(c) Is consistent with prior testimony and is offered to either rebut that the witness is lying or exaggerating (and the statement was made before any motive to lie or exaggerate arose) or to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or sensory deficiency.

+ Impeachment? - A prior statement by a witness testifying at trial and subject to cross-examination can be used for substantive evidence and impeachment purposes. If the evidence is also used to impeach, the witness must have an opportunity to explain or deny the statement on the stand unless the witness is an opposing party (statement admissible as an opposing party’s statement).

Question 13

When is a declarant Unavailable?

Answer 13

Hearsay is not admissible unless it falls under a valid exception or exclusion. Some exceptions require that the declarant be unavailable. An unavailable declarant is one who: (1) is exempted from testifying because the court rules that a privilege applies; (2) is absent and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance; (3) cannot be present or testify because of death or illness; (4) testifies to not remembering the subject matter; or (5) refuses to testify despite a court ordered to do so.

Question 14

What hearsay exceptions require that the declarant be unavailable?

Answer 14

1. Declarant’s Former Testimony
2. Declarant’s Statement Against Interest
3. Declarant’s Dying Declaration
4. Declarant’s Statement of Personal or Family History
5. Forfeiture by Wrongdoing

Question 15

Hearsay Exception - Former Testimony

Question 16

Hearsay Exception - Statement Against Interest

Question 17

Hearsay Exception - Dying Declaration

Answer 17

Under the dying declaration exception, a statement is admissible if (1) the declarant is unavailable; (2) the statement is being introduced in a homicide or civil case; (3) the declarant believed that his death was imminent when he made the statement; and (4) the statement concerned the cause or circumstances of what declarant believed to be his death.

Question 18

Hearsay Exception - Statement of Personal or Family History

Answer 18

[Statements of personal, family history - concerning, birth adoption, divorce, etc.] - (1) unavail; (2) member of fam or intimately assoc.; (3) based on personal knowledge of fact or family rep

Question 19

Hearsay Exception - Forfeiture by Wrongdoing

Question 20

Hearsay Exception - Present sense impressions

Question 21

Hearsay Exception - Excited Utterance

Question 22

Hearsay Exception - Statements of mental, emotional, or physical condition

Question 23

Hearsay Exception - Statements for purposes of medical diagnosis and treatment

Question 24

Hearsay Exception - Past recollection recorded

Question 25

Hearsay Exception - Business Records

Question 26

Hearsay Exception - Public Records & Reports

Answer 26

Under the public records exception, the following records are admissible: (1) records describing policies and practices of a public office or agency; (2) matters observed pursuant to a duty imposed by law (excluding police/law enforcement personnel reports in criminal cases). In civil cases and proceedings against the government in criminal cases, factual findings from a legally authorized investigation.

Question 27

Absence of a business/public record

Answer 27

The absence of a business/public record may be used to prove the non-occurrence or non-existence of a matter if it was the regular practice to keep the record and a diligent search as made.

Question 28

When Public Records/Business Records are Inadmissible

Question 29

Hearsay Exception - Learned treatises

Question 30

Other Exceptions to the Hearsay Rule

Answer 30

1. Ancient Docs (before 1/1/98)
2. Judgment of Prior Convictions - to prove fact essential to the judgment. If criminal case, can only offer against the accused.
3. Documents affecting a property interest (e.g., will/deed)
4. Reputation - character, personal/family/community history
5. Family Records - statements of fact from jewelry, engravings, family bibles, tombstones, etc.
6. Market Reports - Public compilations relied upon by the public or a particular occupation

Question 31

Hearsay Exception - Residual Catchall

Answer 31

A statement not otherwise covered by a hearsay exception is nevertheless still allowed into evidence if:

1. Supported by guarantees of trustworthiness based on the TOTC under which it was made and any evidence, if any corroborating the statements
2. More probative on the point for which it was offered than any other evidence that the proponent can obtain with reasonable effort (strictly necessary)
3. Proponent must give reasonable notice to adversary as to intent to offer statement including (1) substanc eof statement and (2) the name of the declarant.

Notice generally in writing in advance of trial but may be given in any form during the hearing or trial if good cause is shown.

Question 32

Right to Confront Witnesses

Answer 32

The Confrontation Clause of the Sixth Amendment gives a criminal defendant the right to confront the wtiensses against him. Absent forfeiture caused by the defendant’s wrongful act intended to keep the witness from testifying, the use of an out of court statement (even within a hearsay exception) violates the Sixth Amendment and is inadmissible when:

1. The statement is testimonial
2. The declarant is unavailable to be cross-examined at trial
3. The defendant did not have the opportunity to cross-examine the declarant before trial

Question 33

Confrontation Clause - What statements are testimonial vs. non-testimonial?

Answer 33

Testimonial statements include statements made to (a) grand juries; (b) affidavit or certified report with forensic lab results; or (c) law enforcement whose primary purpose (when viewed objectively) was to collect testimony to be later used at trial

Non-testimonial statements are those where the primary purpose of the statement during a police investigation was to aid the police in an ongoing emergency. However, the emergency can abate during the call, turning the statement testimonial.

Question 34

Impeaching a Hearsay Declarant

Answer 34

Once an out-of-court statement is offered for its truth, the credibility of the hearsay declarant may be attacked with an inconsistent statement by that declarant, including statements that would otherwise be hearsay.