Hearsay Generally and Exclusions/Exemptions

Question 1

When are out of court statements not hearsay?

Answer 1

SUAVEI

State of mind
Utterance (to prove the fact of)
Association (to demonstrate)
Verbal act of legal significance
Effect on the listener
Impeachment

FIVEDD

Fact of an utterance
Impeachment (for the purpose of)
Verbal act of legal significance
Effect on the listener
Demonstrate declarant’s state of mind
Demonstrate association

Question 2

Federal Exemptions (statutory non-hearsay)

Answer 2

1. Prior inconsistent statements
2. Admissions of a party opponent
3. Prior consistent statements
4. Prior identification

PAPP

Question 3

What are the requirements for prior inconsistent statements?

Answer 3

Prior inconsistent statement is admissible under 801(d) if:

1. The declarant testifies and is subject to cross about the prior inconsistent statement;
2. the prior statement is inconsistent with declarant’s testimony; and
3. the prior statement was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.

Question 4

What are the requirements for prior consistent statements?

Answer 4

1. Made by declarant who testifies at trial and is subject to cross
2. statement is offered to rebut a charge or implied charge that the declarant recently fabricated or acted from a recent improper influence or motive in so testifying.

May be offered for rehabilitation generally, and as substantive evidence (hearsay) even if not given under oath but only if offered to rebut a charge of recent fabrication.

Per Q:

1. Prior statement is consistent with witness’s current testimony
2. the witness is subject to cross examination
3. the statement is being offered to rebut a charge that the speaker recently fabricated the statement
4. the consistent statements were made before the alleged motive to fabricate arose.

Question 5

What are the requirements for prior identification?

Answer 5

1. Declarant testifies at trial and is subject to cross about the statement; and
2. the statement identifies a person as someone the declarant perceived earlier.

Federal: permits use as substantive evidence if not made under oath.

CA: hearsay EXCEPTION (admissible hearsay) if
1. the statement was made when the crime or occurrence was fresh in the witness’s memory; and
2. the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.

Question 6

What are the requirements for admission of a party opponent?

Answer 6

1. A statement made by a party on a prior occasion
2. now being offered against that party.

CA - hearsay exception (admissible hearsay).

Question 7

802(d)(2) - statements by a party opponent

Answer 7

1) admits any statement made
2) statements the party (TO THE CASE) adopts as her own
3) any statement made by a person the party authorized to speak on the subject
4) most statements made by the party’s agents or employees
5) Co-conspirator in the course/scope of the conspiracy
-the admission made by the agent does not need to be acting in the scope of his employment

Question 8

Statements are testimonial if

Answer 8

Declarant’s “primary purpose” for making the statement is that it be used in a criminal investigation or prosecution.

Question 9

What does it mean to say that a statement is testimonial?

Answer 9

A solemn declaration or affirmation made for the (primary) purpose of establishing or proving some fact. Webster.

“Whether the primary purpose of the primary purpose of the interrogation was to enable police assistance to meet the ongoing emergency.” Davis v. Washington.

Question 10

805 hearsay within hearsay (multiple hearsay)

Answer 10

Rule 805 permits hearsay within hearsay to be admissible if each out of court statement individually falls within a hearsay exemption or exception.

Question 11

Two key types of non-hearsay?

Answer 11

PAWs and OPPAs

Prior Assertions by a Witness

Opposing Party Prior Assertions

Question 12

3 types of Prior Assertions by a Witness?

Answer 12

IDs, SIs, and RCs

Identifications
Sworn Inconsistencies
Rehabbing Consistencies

Question 13

Types of Opposing Party Prior Assertions

Answer 13

Direct = Opposing Party actually Asserted

Indirect = Asserted by someone else

You can SMAC the Opposing party with it:

Spokesperson
Manifest belief
Agent
Coconspirator

Question 14

What are the five types of statements by a party opponent under 801(d)(2) - Admissible as non-hearsay.

Question 15

When may an opposing party’s statement be impeached under Rule 806?

Question 16

When may an opposing party’s statement be impeached under Rule 806?

Question 17

What is a verbal act?

Answer 17

A verbal act of legal significance is offered to show that it triggered rights or liabilities, not to prove the truth of the matter asserted. Accordingly, it is not hearsay.