Hearsay Flashcards
What is the shorthand definition of hearsay?
Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted in that statement.
Whether something is hearsay depends on what?
Whether something is hearsay may depend on what it is offered to prove.
FRE 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
FRE 801(c) definition of 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.
Who is a declarant under FRE 801(b)?
A declarant is the person who made the statement.
What constitutes a statement for hearsay purposes?
an assertion of fact made by a human being.
Can animals and machines be hearsay declarants?
Nope!
Are gestures assertions of fact?
Gestures are typically not an assertion of fact… the person has to intend the gesture to be an assertion of fact in order for it to be one for hearsay purposes. For example, giving a thumbs up or pointing at someone can be assertions of fact and can be hearsay.
Are pictures assertions of fact?
Not typically unless someone is holding a sign in the picture.
5 questions on potential hearsay evidence
1) does the evidence contain a statement?
2) was the statement made outside of court?
3) is the party offering the statement to prove the “truth of the matter asserted”?
4) Does an exception apply?
5) If offered in a criminal case, does the sixth amendment “confrontation clause” limit or preclude the use of the statement?
What are the 4 main categories of hearsay exceptions
1) 801 - exceptions for hearsay statements that are labeled as “not hearsay”
2) 803 - exceptions that are applicable whether or not the hearsay declarant is “available” – except that one of them requires the declarant to be available (803(5) - recorded recollection)
3) 804 - 5 exceptions which require the declarant to be “unavailable” - but one form of unavailability requires the declarant to be available to then testify that they are unavailable.
4) 807 - one residual exception that allows judges to admit a hearsay statement that doesn’t meet the other exceptions.
What are the five requirements for prior inconsistent statements under FRE 801(d)(1)(A)?
1) Declarant must testify at THIS trial, under oath
2) Declarant must be subject to cross examination
3) Prior statement must be inconsistent with trial testimony
4) Prior statement must have been made under penalty of perjury
5) Prior statement must have been made at a trial, hearing, other proceeding, or deposition.
What are the 5 requirements for prior consistent statements under FRE 801(d)(1)(B)?
1) Declarant must testify at THIS trial, under oath
2) Declarant must be subject to cross-examination
3) Prior statement must be consistent with trial testimony
4) Witness/declarant’s credibility must be “attacked”
5) Prior statement must have probative value in rehabilitating the witness’s credibility.
What are the 3 requirements for the hearsay exception for prior identifications under FRE 801(d)(1)(C)?
1) declarant must testify at THIS trial, under oath
2) declarant must be subject to cross examination
3) prior statement must have been an identification.
801(d)(1) vs 613?
613 governs the use of a witness’s prior inconsistent statement for the purpose to impeach a witness’s credibility or to rehabilitate a witness’s credibility. Whereas, prior statements offered using 801(d)(1) are for the purpose of asserting the truth of the content.
Which rule governs opposing party statements exempted from hearsay?
FRE 801(d)(2): every statement by an opposing party is exempted from the hearsay rule
What are elements of 801(d)(2)?
1) you said something (or wrote it, agreed with it, adopted it, authorized it, an agent or employee said ti in the course and scope of their agency or employment, or a co-conspirator said it in furtherance of the conspiracy while it was ongoing)
2) the opposing party offers it in evidence
3) it is admissible against you for its truth.
Can someone adopt a statement through being silent?
Weston-Smith v. Cooley: whether the circumstances show that the lack of denial is so unnatural as to support an inference that the undenied statement is true.
Can parties on the same side of the v. admit statements as opposing party statements if they have conflicting interests?
For it to be an opposing party statement… they need to be on the other side of the v.
Can prosecution admit an out-of-court statement made by one of the multiple defendants in a criminal trial if they use a limiting instruction to make it clear that it is only admissible against the one defendant that made the statement?
No, under Bruton a limiting instruction would be insufficient to protect the other defendants.
Other options would be:
- redact but can’t fundamentally change the statement… if it is too suggestive of a deletion that is still not allowed.
- could sever and do separate trials
- get separate juries but do one trial.
What are the elements of coconspirator statements under 801(d)(2)(E)?
A) Any statement made by any coconspirator is admissible for its truth against all members of the conspiracy as long as:
1) the statement was made while the conspiracy was ongoing and
2) the statement was made in furtherance of the conspiracy.
For coconspirator statements under 801(d)(2)(E), does the conspiracy need to be charged in the case? Does the declarant co-conspirator need to be a party?
No & no!
What rule covers present sense impression?
803(1)
What is a present sense impression under 803(1)?
a) statement made at the same time as an event or immediately thereafter
b) statement is limited to description or narration; no analysis allowed
What hearsay exception involves excited utterances?
803(2)
What are the important points regarding excited utterances under 803(2)?
1) statement made while the declarant is excited by an event.
2) statement must be related to the exciting event; may include analysis
3) the standard for judging whether someone is excited is a subjective rather than objective test.
What rule covers the “state of mind” exception to hearsay?
803(3)
Important points regarding 803(3) - state of mind exception
1) basically a present sense impression of an internal feeling
2) can’t use a state of mind impression to prove that whatever the person is thinking is true… it can only go to show what was in their head.
3) Under Hillmon you can use evidence that someone intended to travel somewhere as circumstantial evidence that they did travel there. Additionally, if someone says they intend to travel somewhere with someone else, that can also be used to circumstantially prove the the other person did travel as well.
What rule covers the statements for medical diagnosis or treatment exception to hearsay?
803(4)
What is a statement for medical diagnosis or treatment under 803(4)?
a statement that is made for and is reasonably pertinent to medical diagnosis or treatment and described medical history, past or present symptoms or sensations, or their inception or their general cause.
What are 4 important points of 803(4) statements for medical diagnosis or treatment?
1) declarant could be anyone
2) doesn’t matter who the declarant was speaking to… doesn’t necessarily have to be a doctor or medical professional
3) motivation of the speaker is what really matters… motivation must be to obtain medical diagnosis or treatment
4) affixing blame is NOT included in this exception
5) statements to psychologists and psychiatrists are included too.
What rule governs the hearsay exception for recorded recollection?
803(5)
What are the requirements for recorded recollections under 803(5)
A record that (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully 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.
How does 803(5) work?
1) declarant must be available and on the witness stand
2) declarant/witness testifies that they can’t recall something they used to know about, so they can’t testify “fully and accurately”
3) declarant testifies that they made or adopted some record of the matter while the event was still fresh in their memory
4) declarant testifies that the record accurately reflected their knowledge of the event at the time
5) declarant can read the record into evidence; only the adverse party can admit the record itself into evidence
6) recorded recollection read into evidence is admitted for its truth.
does 803(5) require the declarant to be available?
Yes
What rule governs the hearsay exception for business records?
803(6)
What are the requirements of 803(6)?
A record or act, event, condition, opinion or diagnosis if:
(A) the record was made at or near the time by-or from information transmitted by someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit.
(C) making the record was a regular practice of that activity;
(D) All these conditions are known by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Who has the burden of showing a business record is trustworthy or untrustworthy?
The burden is on the opponent of a record to show that it is untrustworthy.
What does it mean for a business record to be untrustworthy?
when a business record is made in preparation for litigation.
What rule governs the hearsay exception for public records?
803(8)
What are the basics of 803(8)?
Record was kept by a public office or agency
The record sets out:
1) “Activities” of the public office or agency within the scope of its designated duties
2) “Observations” the public office or agency had a legal duty to report
3) “Factual findings from a legally authorized investigation”
& The circumstances surrounding the preparation of the record don’t indicate a lack of trustworthiness.
Can observations by law enforcement agencies come in for criminal cases under 803(8)?
NOPE!
Are factual findings inadmissible in criminal cases against the defendant under 803(8)?
Yes
When are factual findings admissible under 803(8)?
doesn’t matter what agency, factual findings are admissible in civil cases and against the government in criminal cases.
What rules govern the absence of business records or public records?
803(7) - absence of business records
803(10) - absence of public records
are the absence of business records or public records admissible?
Yes, under 803(7) and 803(10).
What rule governs the hearsay exception for ancient documents?
803(16)
What is the rule for ancient documents under 803(16)?
A statement in a document that was prepared before January 1st, 1998 and whose authenticity is established is not excluded by the rule against hearsay regardless of whether the declarant is available as a witness.
How to determine the date for the ancient document rule?
the date is determined by the moment at which the information as originally recorded.
What rule governs the hearsay exception for market reports and similar commercial publications?
803(17)
803(17)
Market quotations, lists, directories, or other complications that are generally relied on by the public or by persons in particular occupations are not excluded by the rule against hearsay.
Is discursive or evaluative material included under 803(17)?
Nope, for example, you can admit a table of stock prices, but not a news article about the market’s performance paper.
What rule governs the hearsay exception for learned treatises?
803(18)
Requirements of learned treatises under 803(18)
A statement contained in a treatise, periodical, or pamphlet is not excluded by the rule against hearsay regardless of whether the declarant is available as a witness if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony or by judicial notice
What happens if a learned treatise is admitted?
if admitted, the statement may be read into evidence but not received as an exhibit.
What is the only circumstance in which a party can introduce a learned treatise under 803(18)?
the rule allows parties to introduce learned treatises ONLY in connection with an expert’s testimony.
Must the proponent of a learned treatise establish the treatise as a reliable authority under 803(18)?
Yes
Can a judge take judicial notice of a treatises authoritativeness?
Yes they may.
Does 803(18) encompass learned treatises in almost any field of study?
Yes!
How many hearsay exceptions are there under FRE 804?
4 exceptions:
1) 804(b)(1) - former testimony
2) 804(b)(2) - dying declarants
3) 804(b)(3) - statements against interest
5) 804(b)(6) - forfeiture
What is the main theme of the hearsay exceptions under FRE 804?
They require that the declarant be unavailable… however, one form of unavailability requires the declarant to be available to then testify that they are unavailable.
What are the 5 ways to show that a declarant is unavailable under 804(a)?
1) court rules a privilege applies - 804(a)(1)
2) declarant refuses to testify/contempt - 804(a)(2)
3) complete lack of memory of subject matter - 804(a)(3)
4) dead or incapacitated - 804(a)(4)
5) “absent” - 804(a)(5)
What is needed to show that a declarant is “absent” under 804(a)(5)?
you have to have someone certify they tried to find them but couldn’t. A diligent search is required.
What rule governs the hearsay exception for former testimony?
804(b)(1)
804(b)(1) - former testimony
Testimony that was given as a witness at trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
Is now offered against a party who had or, in a civil case, whose predecessor in interest had an opportunity and similar motive to develop it by direct, cross, or redirect examination
How does 804(b)(1) apply in criminal cases?
In a criminal case, the party with the opportunity to question the declarant in the prior hearing must have been the same party as the opposing party in the current case.
How does 804(b)(1) apply in civil cases?
In civil cases, the requirement is not as strict. A litigant may introduce former testimony as long as the opposing party or that party’s “predecessor in interest” had an opportunity to develop the witness’s testimony at the prior proceeding.
What does predecessor in interest mean?
Predecessor in interest means that the person has very similar interest and similar motive in eliciting testimony from them. It is a tough showing to make.
What is an example of a predecessor in interest situation?
car crash where two people are in the same car and get hit by another car… one case goes to trial first and there is testimony from a police officer… at the second trial for the other person the officer is no longer available but they still want that testimony.
What rule governs the hearsay exception for dying declarants?
804(b)(2)
What are the requirements for dying declarants under 804(b)(2)?
It must be a statement made under the belief of imminent death and can only be brought in for the prosecution of a homicide or in a civil case. Additionally the statement must pertain to the cause of circumstances of the declarant’s impending death.
What rule governs the hearsay exception for statements against interest?
804(b)(3)
What are the elements of 804(b)(3) statements against interest?
1) Declarant unavailable
2) Statement against declarant’s proprietary or pecuniary interest, or tends to invalidate the declarant’s legal claim, or exposes the declarant to civil or criminal liability
3) The statement was so against the declarant’s interest when made that a reasonable person would not have made the statement unless it was true
4) In criminal cases, if the statement exposes the declarant to criminal liability, must be supported by corroborating circumstances clearly indicating trustworthiness.
What is encompassed by the statement against interest rule for 804(b)(3)?
Only the part of the statement that is against themselves. A statement that implicates or places blame on someone else is not included.
What rule governs the hearsay exception for forfeiture?
804(b)(6)
What are the elements of forfeiture 804(b)(6)?
1) Declarant unavailable
2) Party against whom statement offered acted wrongfully, or acquiesced in wrongful conduct
3) The wrongful conduct was intended, at least in part, to make the declarant unavailable
4) The wrongful conduct in fact cause the unavailability
What constitutes wrongful conduct for the purposes of forfeiture 804(b)(6)?
Wrongful conduct = coercion, undue influence, or pressure to silence testimony and impede the truth-finding function of trials
What is the residual hearsay exception that allows a judge to admit hearsay under circumstances that provide “sufficient” guarantees to trustworthiness considering the totality of the circumstances and corroborating evidence?
807
what rule governs hearsay within hearsay?
805
What does rule 805 say?
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conform with an exception to the rule.
What is the confrontation clause?
“In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.”
What does confrontation mean?
cross-examination
What is the holding of Crawford?
1) In criminal cases,
2) The sixth amendment prohibits the introduction against the defendant of out-of-court “testimonial” statements
3) Which otherwise meet the requirements of some hearsay exception
4) If the declarant is unavailable to testify
5) Unless the defendant had a prior opportunity and the same motive for cross examination, or the statement is admissible under a “founding era” exception: dying declarations and forfeiture.
How to determine whether a statement is testimonial?
Use the “primary purpose” test from Ohio v. Clark
The main question is whether, in light of all circumstances viewed objectively, the “primary purpose” of the conversation was to create an out-of-court substitute for trial testimony.
Statements are testimonial when the circumstances objectively indicate that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. - Davis v. Washington.
Can you impeach a hearsay statement?
Yes under FRE 806
Can you impeach a hearsay statement in all the ways you could impeach the declarant if they had testified
806 allows you to use all the same article 6 tools for impeachment.
In what types of cases can you admit a statement under 804(b)(2) - dying declarations
only in a homicide or civil case.
