Hearsay (Definitions, Exemptions, Non-Hearsay) and Confrontation Clause: 801, 802 Flashcards
What are the analysis steps to hearsay?
5-Step Hearsay Matrix
1) Does evidence constitute an out of court statement?
2) If yes, for what purpose does the proponent seek to elicit an out of court statement?
+ Truth of the matter – hearsay
+ Any other reason – not hearsay
3) If the proponent offers an out of court statement for a non hearsay purpose (does not depend on the statement’s accuracy), what is the purpose? Is that purpose relevant?
+ If so, is its probative value substantially outweighed by the risk of unfair prejudice or the other factors set forth in R. 403?
4) If offered for the truth of the matter, is there an exception? Or an exemption?
+ Is that exception or exemption relevant?
+ If so, is its probative value substantially outweighed by the risk of unfair prejudice or the other factors set forth in R. 403?
5) Confrontation Clause Issue: Even if an out of court statement is admissible under the hearsay rule, does the Confrontation Clause require its exclusion?
+ Criminal case
+ P is offering evidence against D
What does R.801(a)-(c) say?
R. 801 Definitions That Apply
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
What is a statement as defined by R.801(a)?
Statement ⇒ a person’s assertion, written, oral or conduct
What are they trying to say)?
If offered for the truth ⇒ hearsay
True or false: The rule against hearsay applies only to persons
True. Limited to persons, not animals.
When is an out of court statement considered hearsay?
Out of court statement constitutes hearsay ONLY IF proponent elicits it to “prove the truth of the matter asserted in the statement”
MUST KNOW WHAT THE PROPONENT INTENDS TO PROVE
+ A party offers an out of court statement for its truth IF the statement must be accurate to be relevant – if the purpose for which a party offers a statement makes the statement relevant without regard to its accuracy, the statement is not hearsay
+ The very same statement can be either hearsay or non-hearsay, depending on the point that the offering party attempts to prove
A is present when B tells C, “The bank where I work has decided to substitute blanks for real bullets in its guard’s guns.” If A were asked to testify to B’s statement in a trial, is the testimony hearsay?
It depends on what it’s offered to prove…
Hearsay: If C were injured in a robbery that took place in the bank where B works and sues the bank for not adequately protecting its customers and if C’s attorney offers B’s out of court statement as evidence that the bank’s guards were armed only with blanks. C’s attorney would be offering B’s statements “for its truth” because B’s statement would be relevant to prove that the guard’s guns were filled with blanks only if it were accurate.
Non-hearsay: If C is charged with robbing the bank and the prosecution offers B’s statement to prove that a motive for the robbery was that C didn’t fear being shot by the guards. B’s statement would not be relevant even if it were inaccurate. Hearing B’s statement could have led C to believe the that the guards only had blanks. C’s belief creates an inference that C would not be fearful of being shot during a robbery attempt which strengthens the inference that C robbed the bank.
True or false: A statement given under oath and in a courtroom proceeding, it is an out of court statement
It depends.
Even if the statement has been given under oath and in a courtroom proceeding, it is an out of court statement IF it was not made during the trial in which it is offered.
No matter how relevant the statement or how credible, you look at the definition of hearsay to determine if the statement qualifies as such
What does R.801(d)(1)(A)-(C) say?
R.801 Exclusions from Hearsay
(d) Statements That Are Not Hearsay – EXEMPTIONS: A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
What does R.801(d)(2)(A)-(E) say?
R.801(d) Exclusions from Hearsay
(2) Opposing Party’s Statement
The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
True or false: Exemptions via R.801(d)
Statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
True
What does R.802 say?
R. 802 The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Does not exclude an out of court statement that is offered for a legitimate non-hearsay purpose
What are the four hearsay dangers?
Four Hearsay Dangers
1) Sincerity → does a hearsay declarant’s out of court statement actually reflect the declarant’s belief?
2) Perception → even if a hearsay declarant was sincere, did the declarant have an adequate opportunity to observe the events to which the hearsay statement refers?
3) Memory → How well did the declarant recall those events at the time the hearsay statement was made?
4) Communication Difficulties → How accurately does a declarant’s choice of words describe those events?
What are some common hearsay misconceptions?
Hearsay Misconceptions
+ Paraphrasing is not hearsay – no matter how loosely paraphrased the out-of-court assertion, it’s hearsay if offered for the truth of its contents
+ It’s not hearsay if the witness is the declarant – when a witness testifies to the witness’ own out of court assertion, the hearsay analysis is identical
+ Cross examiner does not have the opportunity to question the declarant at the time the out of court statement was made
+ If the witness is the declarant, the witness should testify to the event, not to the out of court assertion
+ It’s not hearsay if it’s circumstantial evidence – if the inference depends on the accuracy of the out of court statement, it’s hearsay
+ The statement was made in a police officer’s presence – no general doctrine admits out of court statements simply because a police office was present
What are the elements to bar a statement from trial via Confrontation Clause?
Elements To Bar a Statement – even if it meets a hearsay exception – must meet all the following:
1) Hearsay statement;
2) Offered against a criminal defendant (by prosecution);
3) Statement itself must be testimonial;
4) Cannot cross at trial – witness unavailable; and
5) No prior opportunity to cross examine witness
What did Davis v. Washington establish re: hearsay?
Davis v. Washington → Statements made TO Gov Agents
+ Statements made to law enforcement personnel are nontestimonial and not subject to the Confrontation Clause under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
+ The circumstances in Davis made McCottry’s statements nontestimonial.
McCottry was speaking about events that were happening as she spoke, not about events in the past.
It was clear that McCottry was in the middle of an emergency, as she was being beaten by Davis
What are the common non-hearsay instances?
1) Assertion offered as evidence of a Speaker’s state of mind
2) Assertion offered as evidence of a Listener’s state of mind
3) Assertion offered as a “verbal act” or “words of independent legal significance”
4) Assertion offered to contradict (impeach) in court testimony → Prior inconsistent statement
5) Assertion offered to provide context and meaning
When would an assertion offered as evidence of a Speaker’s state of mind be admissible as non-hearsay?
Whether or not the assertions are accurate, belief spawning from them may be relevant
May be admissible as non-hearsay when offered as circumstantial evidence of a declarant’s subjective belief
Relevant if…
+ The declarant’s belief is itself a fact of consequence
+ Declarant’s belief is circumstantial evidence of declarant’s behavior
+ Declarant’s state of mind serve as the basis of an inference about his/her behavior (no one else’s)
In a will contest case involving a claim that T was mentally incompetent to make a will, the contesting party’s attorney is questioning a witness who has testified that she was a close friend of T
Attorney: Were your conversations with T ever unusual?
Witness: T would say a few times, “I am the walrus”
Opposing counsel objects. How should the court rule?
Objection: Hearsay
Response: Statement is offered as non-hearsay to prove that T was delusional and therefore incompetent to make a will, a fact of consequence in this case. The statement is evidence of delusion
Ruling: Overruled
When would an assertion offered as evidence of a listener’s state of mind be admissible as non-hearsay?
When a listener’s state of mind is relevant, the out of court statement that gave rise to the state of mind can qualify for admission as non-hearsay
May be relevant because
+ It is itself a fact of consequence
+ It constitutes circumstantial evidence of behavior
P sues D for med malpractice, claiming D overprescribed X-rays and severely burned her leg. The law in P’s jurisdiction allows recovery of damages for “reasonable fear of developing cancer.”
P’s attorney: Did you seek medical advice for your leg?
P: Yes, from a different doctor
P’s attorney: What happened when you went to see a different doctor?
P: The doctor examined my leg and told me that there’s a very high risk that’s it’s going to be cancerous in the future.
D’s attorney objects. How should the court rule?
Objection: Hearsay
Response: statement was offered to P by the different doctor to prove that she reasonably feared developing cancer, a mental state which is in itself a fact of consequence on the issue of damages
Ruling: overruled
When are assertions offered as a “verbal act” or “words of independent legal significance” admitted as non-hearsay?
Assertion itself constitutes direct evidence of a fact of consequence
When words and deeds are intertwined and the words establish legal character of the deed, the words are admissible as “the verbal part of the act”
P sues D for defamation, claiming that D made a false statement to a group of people that damaged P’s reputation.
P’s attorney: What happened?
P: I heard D tell a group of club members that I like red meat and that when I ordered a salad I don’t ask for the salad dressing on the side.
D’s attorney objects. How should the court rule?
D’s attorney: Objection, hearsay
Response: D’s statement is non-hearsay because it constitutes words of independent legal significance. P’s testimony provides direct evidence that D spoke the words that we claim are defamatory. D’s uttering of those words satisfies a fact of consequence that we have to prove to make out a case of defamation. We will later offer evidence of other facts of consequence, including the falsity of D’s statement
Ruling: Overruled
A county supervisor is charged with accepting bribes in exchange for votes. P offers evidence that the treasurer of a trash collection company handed the supervisor a cash-filled envelope and said, “This should take care of your vote on the trash collection contract.” Should the statement be allowed as evidence?
The treasurer’s statements are non-hearsay because they establish the legal character of the act as a bribe rather than a loan or a donation to the supervisor’s favorite charity.
When can an assertion offered to contradict (impeach) in court testimony be admitted as non-hearsay?
Evidence of a witness’ out of court assertion that is inconsistent with the same witness’ in-court testimony is admissible as non-hearsay.
Regardless of the out-of-court assertion’s accuracy, the mere fact that a witness made an inconsistent statement is relevant for its possible impact on the witness’ credibility.
P sues D for personal injuries growing out of an auto accident. P’s witness testified on direct examination that D’s car ran a stop sign. D’s attorney cross examines the witness:
Attorney: You saw D’s car run the stop sign?
Witness: I did. That’s what I testified to.
Attorney: Yet the day after the accident, you talked about it with a co-worker, didn’t you?
Witness: I’m sure I did. It was pretty unnerving.
Attorney: And didn’t you tell your co-worker that you thought the driver of the car that collided with D’s car was to blame for the accident?
P’s attorney objects. How should the court rule?
Objection: Hearsay
Response: The statement made by the witness to her co-worker is being offered as non-hearsay to contradict the witness’s direct examination testimony. The contradictory accounts of the same event may lead the jury to disbelieve the witness.
Ruling: Overruled.
+ Even though the statement cannot be used for the truth of its contents (P was actually at fault), the out of court statement may only be used for the limited purpose of impeachment. Likely a jury instruction follows.
+ R.801(d)(1)(A) makes contradictory out of court assertions admissible for their truth when made under oath
When would an assertion offered to provide context and meaning be admitted as non-hearsay?
+ Elicit testimony so that it portrays events in a way that make the events feel real and memorable – convince judge and jurors that testimony is accurate and legal claims are valid
+ Help witnesses appear credible
+ Not offered for the truth, but to portray a detailed and accurate version of the events relevant to a litigated dispute
What are the 801(d)(1) exemptions from the hearsay rule?
Rule 801(d): Exclusions from Hearsay – Declarant-Witness’s Prior Statement
(d) Statements that are not hearsay. A statement that meets the following conditions is not hearsay
(1) Declarant-Witnesses’s Prior Statement
(A) Inconsistent
(B) Consistent
(C) Identifies a person as someone the D perceived earlier
Auto accident case where P (silver car) sues D (blue car) for negligence. P seeks to offer evidence that a bystander/witness saw the collision and told a friend, “the blue car ran the red light.” Is this allowed?
In all likelihood, a relevant non-hearsay use for this statement is unavailable.
+ State of mind not at issue
+ We don’t have conflicting testimony out of court and at trial
The only way to P could offer the statement into evidence against D would be to offer it for its truth
Auto accident case where P (silver car) sues D (blue car) for negligence. A bystander testifies on behalf of D saying, “the blue car driver had the green light.” Could P driver offer bystander’s inconsistent out of court statement to their companion into evidence to attack the bystander’s credibility?
Yes, but P would probably prefer that bystander’s statement also be admissible to prove that D drove the red light.
True or false: 801(d) hearsay exemptions are not hearsay
False. 801(d) exemptions are hearsay but excluded from the general bar from hearsay – offered for the truth.
What does R.801(d)(1)(A) say?
Rule 801(d): Exclusions from Hearsay – Prior Inconsistent Statements
This is hearsay but it is excluded from the general bar from hearsay – offered for the truth
(d) Statements that are not hearsay. A statement that meets the following conditions is not hearsay
(1) Declarant-Witnesses’ Prior Statements: The declarant testifies and is subject to cross-examination about a prior statement and the statement
(A) Is inconsistent with the declarant’s testimony and was given under penalty or perjury at trial, hearing, or other proceeding or in a deposition
