Hearsay & Circumstances of Its Admissibility

Question 1

What’s Hearsay?

Answer 1

Hearsay = a previous out-of-court statement that is offered to prove the truth of the matter asserted

→ default is that Hearsay is NOT admissible – BUT there are many Exceptions you must consider…

Question 2

What are examples of statements that are NOT offered for truth of matter asserted?

(i.e., that aren’t hearsay)

Answer 2

These examples are statements that aren’t offered for truth of matter asserted:

1. Words of Offer & Acceptance
2. Libel or Slander
3. Verbal Acts that show motive or notice

→ so if you see ^these^, you know such statement is NOT hearsay

Question 3

If you can tell a statement IS hearsay but aren’t sure it fits in an exception, what answer do you pick?

Answer 3

→ “inadmissible as hearsay not within any exception”

Question 4

H/E: Present Sense Impression

Answer 4

= a Hearsay Exception (IS admissible) = a statement made while observing fact** – it’s a **NON-emotional observation

*be sure person made statement DURING MOMENT he was observing

E.g., “I saw the car go through the red light”

NOT, e.g., Call wife 12 hours later to say “I saw the car go through the red light”

Question 5

H/E: Excited Utterance

Answer 5

= a Hearsay Exception (IS admissible) = a statement made while excited

LOOK FOR: ! (exclamation points!)

Question 6

H/E: Then-Existing Mental, Emotional, or Physical State of Mind

Answer 6

= a Hearsay Exception (IS admissible) = a statement of one’s intent, emotion, or physical state of mind

E.g., “I was going to New York” “I was on my way to LA” “I couldn’t have killed her; I loved her” “I’m suffering from pain right now”

Question 7

H/E: Business Record

Answer 7

= a Hearsay Exception (IS admissible) = a record made (all the time) in the ordinary course of the business

E.g., a timesheet; or a CEO signed an invoice on a piece of paper with ABC, Inc. letterhead

NOT, e.g., Christmas gift for clients that’s on law firm’s letterhead → NOT a Business Record b/c it’s not a record made all the time, so it’s inadmissible hearsay

Question 8

H/E: Statement for Medical Diagnosis or Treatment

Answer 8

= a Hearsay Exception (IS admissible) = a statement about past OR present SYMPTOMS related to the treatment OR diagnosis (generally, statement was made to Provider while being diagnosed/treated)

Question 9

H/E: Recorded Recollection

Answer 9

= a Hearsay Exception (IS admissible) – RULE:

(1) the Witness made OR adopted the document
(2) but now he cannot remember something

→ can put doc in front of him to refresh his memory - and the doc CAN be read into evidence

Question 10

H/E: Public Record

Answer 10

= a Hearsay Exception (IS admissible) = a record or statement from a public office / agency that shows activities of the office OR observations by someone with a duty to report (e.g., police officer, agency official)

E.g., a police report

Question 11

H/E: Absence of Business Record or Public Record

Answer 11

= a Hearsay Exception (IS admissible) = → look for facts that indicate there was NO [business/public] RECORD when there should’ve been a record

Question 12

H/E: Learned Treatise

Answer 12

= a Hearsay Exception that IS admissible IF an EXPERT WITNESS is relying on the treatise

Question 13

H/E: Ancient Document

Answer 13

= a Hearsay Exception (IS admissible) = a document that was created before January 1, 1998AND is authenticated (i.e., that there aren’t any signs of tampering)

Question 14

H/E: Catch-All Exception

Answer 14

= a Hearsay Exception (IS admissible) = any OTHER statement that is: (1) material, (2) trustworthy, AND (3) in the interest of justice

Question 15

What does it mean when a Declarant is “unavailable” as a Witness?

Answer 15

“unavailable” declarant = someone who’s not currently at the trial

E.g., missing; in a coma; Pleaded the Fifth; is in a Witness Protection Program

Question 16

H/E: Dying Declaration

Answer 16

= a Hearsay Exception (IS admissible) = the Declarant…

• 1) made statement while he thinks he is imminently dying
• 2) statement is about** **WHY he’s dying (cause of death)
• 3) is currently unavailable*but doesn’t have to be dead!
• *this only applies in → Homicide OR Civil Case

Question 17

H/E: Statement Against Interest

Answer 17

= a Hearsay Exception (IS admissible) = the Declarant made a statement that makes himself look liable/guilty, AND Declarant is currently unavailable

*TIP: don’t get this confused with an admission! → generally, a non-party Declarant makes the Statement Against Interest

*TIP: sometimes you’ll also see this in Qs that say Plaintiff/Defendant made a statement but is now unavailable

Question 18

H/E: Former Testimony

Answer 18

= a Hearsay Exception (IS admissible) = the Declarant…

• 1) the party against whom the Former Testimony is being offered (i.e., opposing party) was a party in a former case
• 2) that former case was about same subject matter as this current case
• 3) Former Testimony was made under oath
• 4) they had the opportunity AND/OR motive to cross-examine the witness
• 5) Declarant is currently unavailable

Question 19

Non-Hearsay

Answer 19

= things that ARE admissible substantively AND are NOT hearsay

*KEY WORDS: sometimes ans. will call these “admissible as non-hearsay” or “admissible as substantive evidence”

*these have nothing to do with the hearsay exceptions

Question 20

Admissions

Answer 20

= NON-Hearsay (IS admissible) = a statement made by a Party admitting something, making himself look responsible or guilty

*there are TWO types of Admissions: Vicarious & Adoptive Admissions

Question 21

Vicarious Admissions

Answer 21

= NON-Hearsay (IS admissible) = a statement made by an Employee** **about his Company & liability

E.g., a mechanic in a Company saying “we don’t fix the brakes” or a bus driver in a Company saying “we’re usually drunk when we drive” → if the Company is a Party, then those statements ARE ADMISSIBLE as Vicarious Admissions

Question 22

Adoptive Admissions

Answer 22

= NON-Hearsay (IS admissible) = where someone says something that a reasonable person would normally object to, BUT the Party does not say anything / object to it

E.g., Someone accuses Jon of murder, and Jon does NOT respond–even though a reasonable person would’ve objected to such an accusation. → will come in as an Adoptive Admission

Question 23

Prior Consistent Statement

Answer 23

= NON-Hearsay (IS admissible) = a prior statement by the Declarant which is the same as his current testimony** and that’s **meant to REFUTE any charge that the Declarant fabricated OR that he had an improper motive

Question 24

Prior Sworn Inconsistent Statement

Answer 24

= NON-Hearsay (IS admissible) = a prior statement which Declarant made under OATH** that is **inconsistent with his current testimony

Question 25

Prior Identification

Answer 25

= NON-Hearsay (IS admissible) = where Declarant is testifying about someone that he identified earlier (e.g., in a lineup)

Question 26

Right to Confrontation

Answer 26

→ someone’s Right to Confront a witness concerning an out-of-court statement depends on whether the statement is: Testimonial OR NON-Testimonial

• “Testimonial” = statement NOT made during an emergency
  
  • → is NOT admissible
• “NON-Testimonial” = statement made to police during an emergency (e.g., Alfred tells police “the attacker is running that way”)
  
  • → IS admissible

Question 27

Physical & Demonstrative Evidence

Answer 27

= e.g., having someone show his scar, or show his limp while walking

→ generally IS admissible

Question 28

Hearsay upon Hearsay

Answer 28

= TWO different out-of-court statements

→ NOT admissible – UNLESS BOTH statements meet an Exception OR Exemption to the ban on hearsay

E.g., Bob told Fred, and then Fred told Jon