Hearsay Exclusions and Exceptions

Question 1

Standard of Proof for Hearsay Exceptions

Answer 1

The court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

NOTE - this is a preponderance of the evidence standard

Question 2

Hearsay Within Hearsay

Answer 2

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Question 3

Statement by Party Opponent

Answer 3

A statement that is offered against an opposing party, and was made by that party in an individual or representative capacity is excluded from the definition of hearsay.

EXCLUSION

Question 4

Adoptive Statement by Party Opponent

Answer 4

A statement that is offered against an opposing party, and the statement is one that the party manifested that is adopted or believed to be true is excluded from the definition of hearsay.

EXCLUSION

Question 5

Adoptive Statement by Silence

Answer 5

Silence may be an adoptive admission when the circumstances are such that if the statement that was made wasn’t true, the party would have protested.

Four Preconditions for Adoptive Statements
1) The party heard and understood the other party’s statement
2) the party was at liberty to respond (look for violations of self-incrimination)
3) the circumstances naturally called for a response
4) the party failed to respond, or he responded but did not rebut, deny, or demur

Question 6

Statements by Authorized Party

Answer 6

A statement that is offered against an opposing party, and the statement was made by a person whom the party authorized to make a statement on the subject is excluded from the definition of hearsay.

The statement must be considered, but does not by itself establish the declarant’s authority.

EXCLUSION

Question 7

Statements by Employees

Answer 7

A statement that is offered against an opposing party, and the statement was made by the party’s agent or employee on a matter within the scope of that relationship while it existed is excluded from the definition of hearsay.

The statement must be considered, but does not by itself establish the existence of scope of the relationship.

EXCLUSION

Question 8

Statements by Co-Conspirators

Answer 8

A statement that is offered against an opposing party, and the statement was made by the party’s co-conspirator during and in furtherance of the conspiracy is excluded from the definition of hearsay

The statement must be considered, but does not by itself establish the existence of the conspiracy or participation in the conspiracy

EXCLUSION

Question 9

What are the three exclusions when a declarant testifies at trial and subject to cross examination

Answer 9

1) Prior inconsistent statements
2) prior consistent statements
3) statements of identification

Question 10

Subject to Cross Examination

Answer 10

A witness is regarded as subject to cross examination when the witness is placed on the stand, under oath, and responds willingly to questions. This is true even if the witness cannot remember the event surrounding the statement or the statement itself.

Question 11

613 - Prior Inconsistent Statements for Impeachment

Answer 11

1) When examining a witness about about the witness’s prior statement, a party need not show it or disclose its content to the witness. But the party must, on request, show it or disclose its content to an adverse party’s attorney.

2) Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This does not apply to an opposing party’s statements.

NOTE - you don’t have to ask the witness about the statement and can still introduce the statement if the witness may be called back to the stand at some point latter in trial

Question 12

Prior Inconsistent Statement Hearsay Exclusion

Answer 12

If the declarant testifies and is subject to cross examination about a prior statement, and the statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, other proceeding, or in a deposition, it is excluded from the definition of hearsay.

EXCLUSION

NOTE - in a criminal case, the government may not call a witness to the stand for the sole purpose of impeaching that witness with a prior inconsistent statement

Question 13

Prior Consistent Statements

Answer 13

If the declarant testifies and is subject to cross examination about a prior statement, and the statement is consistent with the declarant’s testimony and is offered

1) to rebut an express or implied charge that the declarant recently fabricated it or acted from an improper influence or motive in so testifying; or
2) to rehabilitate the declarant’s credibility as a witness when attacked on another ground (normally a non-character ground);

It is excluded from the definition of hearsay. EXCLUSION

NOTE - to rebut an express of implied charge of fabrication, the statement must have been made prior to when the alleged motive to fabricate the testimony arose.

Question 14

Statements of Identification

Answer 14

If the declarant testifies and is subject to cross examination about a prior statement, and the statement identifies a person as someone the declarant perceived earlier, it is excluded from the definition of hearsay.

EXCLUSION

Question 15

Exceptions when the declarant is unavailable

Answer 15

1) Former Testimony
2) Statements Against Interest
3) Dying Declarations
4) Statement of Personal or Family History
5) Forfeiture by Wrongdoing

Question 16

Unavailability Definition

Answer 16

A declarant is considered to be unavailable as a witness if the declarant:

1) is exempted from testifying about the subject matter of the declarant’s statement because a privilege applies;
2) refuses to testify about the subject matter despite a court order to do so;
3) testifies to not remembering the subject matter;
4) cannot be present to testify because of death or a then existing infirmity, physical illness, or mental illness; or
5) is absent from the trial or hearsing and the statement’s proponent has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony.

NOTE - unavailability does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying

Question 17

Former Testimony

Answer 17

If the declarant is unavailable, former testimony is not excluded by the rule against hearsay that

1) was given as a witness at a trial, hearing, or lawful deposition, whether during the current proceeding or in a different one; and

2) is now offered against the party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination.

Question 18

Important Notes for Former Testimony

Answer 18

Grand Jury - Grand jury testimony is never admissible against a defendant under this exception because the defendant has no opportunity to question the witness at a grand jury proceeding

Similar Motive - this is a factual inquiry based on the similarity of the issues and the context of the questioning. The court must compare the fundamental objectives of the questioning.

Question 19

Statements Against Interest

Answer 19

If the declarant is unavailable, a statement is not excluded by the rule against hearsay that:

1) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interests or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability.; and

2) is supported by corroborating circumstances that clearly indicates its truth worthiness if it is offered in a criminal case as one that tends to expose the declarant to criminal liability

Question 20

Broad Self Inculpatory Statements

Answer 20

When there has been a broad self inculpatory statement by the declarant, the statement must be analyzed as a series of single declarations or remarks to determine whether each individual statement is against the declarant’s interest.

Only the self inculpatory statements are admissible, statements inside the broad confession that are not self inculpatory are not admissible.

Question 21

Dying Declarations

Answer 21

The following is not excluded by the rule against hearsay if the declarant is unavailable

– in a prosecution for HOMICIDE or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstance.

NOTE - does not apply in an attempted homicide prosecution

Question 22

Statement of Personal or Family History

Answer 22

Statements by an unavailable declarant concerning births, marriages, divorces, relationships, genealogical status are admissible provided that

1) the declarant is a member of the family in question or intimately associated with it; and
2) the statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation.

Question 23

Forfeiture by Wrongdoing

Answer 23

A statement is not excluded by the rule abasing hearsay when the declarant is unavailable, and the statement is offered against a party that wrongfully cause, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

Question 24

Hearsay Exceptions when Declarant’s Availability is Irrelevant

Answer 24

1) Present Sense Impressions
2) Excited Utterance
3) Present State of Mind
4) Statement made for medical diagnosis or treatment
5) Recorded Recollection Exception
6) Business Records
7) Absence of Records
8) Public Records
9) Vital Statistics
10) Absence of Public Records
11) Learned Treatises
12) Ancient Documents
13) Documents Affecting Property Interests
14) Reputation
15) Family Records
16) Market Reports

Question 25

Present Sense Impressions

Answer 25

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it, it not excluded by the rule against hearsay regardless of whether the declarant is available.

Question 26

Excited Utterance

Answer 26

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it cause, it not excluded by the rule against hearsay regardless of whether the declarant is available.

Question 27

Present State of Mind

Answer 27

The following is not excluded by the rule against hearsay regardless of whether the declarant is available:

– a statement of the declarant’s then existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition (mental feeling, pain, bodily health), BUT
– not including a statement of memory or belief to prove the fact remembered or believed

NOTE - for a statement of intent, the declarant’s statement must concern the declarant’s intent, but may not concern the intent of another.

Question 28

Statement Made for Medical Diagnosis or Treatment

Answer 28

A statement that (1) is made for, and reasonably pertinent to, medical diagnosis or treatment; and (2) describes medical history, past or present symptoms or sensations, their inception, or their general cause, is not excluded by the rule against hearsay regardless of whether the declarant is available.

NOTE - this applies to consulting doctors

NOTE - this does not include statement’s of fault

Question 29

Recorded Recollection Exception

Answer 29

The following is not excluded by the rule against hearsay, regardless of whether the declarant is available:

1) a record that (a) is on a matter that the witness once knew but now cannot recall well enough to testify truthfully and accurately; (b) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (c) accurately reflects the witness’s knowledge.

2) If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

IMPORTANT - must have tried, without success, to refresh the witness’s recollection

Question 30

Refreshing a Witness’s Recollection

Answer 30

A witness may be shown anything that will help refresh her recollection, regardless of whether the item is admissible.

An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.

Question 31

Business Records

Answer 31

The following is not excluded by the rule against hearsay, regardless of whether the declarant is available:

A record of an act, event, condition, opinion, or diagnosis if

1) the record was made at or near the time by, or from information transmitted by, someone with knowledge;
2) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
3) making the record was a regular practice of that activity;
4) these conditions are shown by testimony of the custodian or another qualified witness, or by certification; and
5) the opponent does not show that the source of the information or method or circumstances of preparation indicate a lack of trustworthiness

NOTE - if a document was prepared in contemplation of litigation, then it is likely the opposing party will be able to show that record has a lack of trustworthiness

Person with Knowledge - to qualify as a person with knowledge, the person must be part of the organization (customers and witness statements don’t qualify)

Question 32

Absence of Business Records

Answer 32

Evidence that a matter is not included in a business records is admissible if

1) the evidence is admitted to prove the the matter did not occur or exist;
2) a record was regularly kept for a matter of that kind; and
3) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness

Question 33

Public Records

Answer 33

A record or statement of a public office is admissible if:

It sets out:
1) the office’s activities;
2) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
3) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

The opponent does not show that the source of information or other circumstances indicate a lack of truth worthiness.

CANNOT ADMIT POLICE REPORTS AGAINST A CRIMINAL DEFENDANT UNDER THIS OR THE BUSINESS RECORD EXCEPTIONS

Question 34

Absence of Public Records

Answer 34

Testimony or certification that a diligent search failed to disclose a public record or statement is admissible if the testimony or certification is admitted to prove that:

1) the record or statement does not exist; or
2) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind

Question 35

Vital Statistics

Answer 35

A record of birth, death, or marriage is admissible if reported to a public office in accordance with a legal duty

Question 36

Learned Treatises

Answer 36

A statement contained in a treatise, periodical, or pamphlet if

1) the statement is called to the attention of an expert witness on cross examination or relied on by the expert on direct examination; and
2) the publication is established as a reliable authority by the expert’s admission or testimony by another expert or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

Question 37

Ancient Documents (Hearsay)

Answer 37

A statement in a document that was prepared before January 1, 1998 and whose authenticity is established is admissible

Question 38

Documents Affecting Property Interests

Answer 38

A statement in a document affecting an interest in property (deed, will, ect.) is admissible if the statement is relevant to the document’s purpose.

However, the exception will not apply if later dealings with the property are inconsistent with the truth of the statement asserted or the intent of the document

Question 39

Reputation

Answer 39

Reputation evidence is hearsay because it summarizes various out of court statements by other people, but there are several exceptions that admit this evidence to prove (1) character, (2) personal or family history, (3) land and boundaries, and (4) a community’s general history.

Question 40

Family Records

Answer 40

Statements of fact concerning personal or family history contained in family bibles, jewelry engravings, genealogies, tombstone engravings, ect… are admissible.

Question 41

Market Reports

Answer 41

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation

Question 42

Residual Exception

Answer 42

If a statement does not fall into any other exception, it may be admitted if

1) the statement possesses sufficient guarantees of truth worthiness - the court must consider the totality of the circumstances and any evidence that corroborates the statements;

2) the statement is strictly necessary; and

3) the proponent gives reasonable notice to the adverse party to their intent to offer the statement including (a) the substance of the statement and (b) the name of the declarant.