Hearsay (Module 8) Flashcards
Hearsay Definition
An out of court statement offered to prove the truth of the matter asserted
Statement - oral or written assertion made by a human being
Out of Court - made outside of this courtroom
Nonhearsay in a Negligence Case
In a negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener
Ex. Bricks fell off D’s truck while driving and injured P; P wants to bring witness who says that he saw D earlier in the day and he told D that the ties for the bricks looked loose; this is ok to show that D had notice, but not admissible to prove that the ties were loose
Hearsay within Hearsay
Out of court statement that contains other hearsay is admissible only if the “outer” and “inner” hearsays both fall within an exception
Prior Statements of Testifying Witness (Nonhearsay)
A prior out-of-court statement by made by the person subject to cross-exam at this trial (i.e., they are currently on the stand at this trial) is not hearsay if the prior statement:
a) was an identification of a person
b) is inconsistent with what they’re currently saying on the stand AND they were under oath when making prior statement, or
c) is consistent with current testimony and is being used to: 1) rebut accusation of lying/exxagerating or 2) rehab witness (but not for truthfulness)
Opposing Party Statement (Nonhearsay)
Any statement made by a party is admissible against that party (anything P says D can offer against P and vice versa); statement need not have been against their interest when it was made
A vicarious statement of an opposing party can also admissible (ex. statement by an agent concerning any matter within the scope of his agency, made during the existence of the employment relationship, are admissible against the principal)
Judicial/Extrajudicial Opposing Party Statements (Nonhearsay)
Formal judicial statements are conclusive
Informal judicial statements are not conclusive and can be explained
Have no idea
Adoptive Opposing Party Statements (Nonhearsay)
When the opposing party expressly or impliedly acquiesced to another’s statement; can be used if:
1) they heard/understood the statement
2) were phys/ment capable of denying, and
3) a rxble person would have denied
Does NOT apply to:
- remaining silent against a cop;
- a co-party (just bc they’re joined in action not sufficient enough of a relationship)
DOES apply to statements made by:
1) authorized spokesperson
2) employee/agent speaking while they were employed and in the scope of employment
3) partnership
4) co-conspirator statement made in furtherance of a conspiracy
Court will need to verify the relationship between parties based on circumstances to admit
Hearsay Exceptions - Declarant Unavailable
DAFFP
D - Dying Declarations
A - Statements Against Interest
F - Statements of Family History
F - Former Testimony of Unavailable Declarant
P - Party purposely prevented declarant from testifying
Grounds for Declarant Unavailability
PRISM
P - exempt bc of privilege
R - refuse to testify
I - incapacity
S - subpeona (failure to comply)
M - memory (lack of)
Former Testimony Of Unavailable Hearsay Declarant
Will be admissible if:
1) was given under OATH at any trial/hearing/deposition (this case or another one)
2) party against whom statement is being offered had a) opportunity and b) similar motivation to question
- i.e., the other trial was same parties same subject matter
Note: GJ testimony is not admissible here because there’s no opp for cross-exam
Statements Against Interest (Unavailable Hearsay Declarant)
Person had personal knowledge of the facts and knew the statement was against their interest when they made it
The interest can be pecuniary, proprietary, or penal
- if it is against penal interest, in a criminal case the statement needs to be corroborated
Where it meets all these elements, it can be admissible in a case against someone else (i.e., person made statement against their own interest implicating the party who is actually on trial, it can be introduced at that second party’s trial)
Dying Declarations (Unavailable Hearsay Declarant)
Criminal - only in homicide cases
Civil - any case
1) declarant believed their death was imminent (need not actually die)
2) statement was about the cause/circumstances that led to their impending death
Statement needs to be based on declarant’s firsthand knowledge
Declarant does not need to actually die, but cannot be available to testify for any reason (whether they died from this or just are unavailable for some other reason)
Statements of Personal/Family History (Unavailable Hearsay Declarant)
Concerning births, marriages, divorces, relationship, genealogical status etc. admissible if:
1) declarant is a member of the family in question or intimately associated with it
2) statement based on declarant’s personal knowledge
Statement Offered Against Party Who Made Declarant Unavailable
Statement can be offered against the other party that intentionally procured the declarant’s unavailability (e.g., killed them) if they did solely to prevent them from testifying
Excited Utterances
Does not matter whether declarant is available or unavailable
Out of court statement relating to a startling event while under the stress/excitement from the event
Present Sense Impressions
Does not matter whether declarant is available or unavailable
Statement that describes or explains event/condition that was made while or immediately after the declarant perceived it
Present State of Mind (Hearsay Exception)
Does not matter whether declarant is available or unavailable
Statement of declarant’s then-existing state of mind (including motive, intent, or plan) or emotional/physical condition is admissible
Statement of intent can be about their intent to do something in the future (ex. “i’m going to off myself next week”)
Statements Made for the Purpose of Medical Diagnosis/Treatment (Hearsay Exception)
Does not matter whether declarant is available or unavailable
Describes person’s medical history, PAST OR PRESENT symptoms, general cause of those issues is admissible if it was made for and pertinent to obtaining medical help
Does not have to be given to a medical professional (ex. tell family member to get help because X is going on)
Difference from PSI is that this includes statements of past condition as well as present
Business Records (Hearsay Exception)
Entry made in the regular course of business at/near the time of the event by someone with personal knowledge (i.e., the person who made the record had personal knowledge of the underlying event)
Need qualified witness (custodian of records or someone close to the process) to either testify in-court or given written certification that the business record meets those elements
An absence of a business record can be used to prove nonoccurence is admissible if there usually would be a record
Public Records (Hearsay Exception)
Made by and within the scope of duty of a public employee at or near the time of event
Allowable types:
1) Record of activities of the office agency (ex. payroll record)
2) Record of matters observed pursuant to a legal duty, but does NOT include police observations in a criminal case
3) Record of factual findings resulting from an investigation authorized by law (can be used any time other than against a criminal defendant)
Recorded Recollection (Hearsay Exception)
If testifying witness can’t remember can use a recorded recollection; can be READ into evidence, but cannot be submitted as an exhibit unless adverse party wants it to be
Learned Treatises (Hearsay Exception)
Admissible as substantive proof if 1) treatise is reliable authority and 2) the excerpt is relied upon by an expert during testimony
Read into evidence but not used as an exhibit
Ancient Documents (Hearsay Exception)
Statement in any authenticated document made before 1/1/1998 are admissible
Reputation Evidence (Hearsay Exception)
Is hearsay because it summarizes various out of court statements made by others, but is routinely admitted
Family Records (Hearsay Exception)
Statements of fact concerning person or family history contained in family heirlooms, gravestone inscriptions, etc. are admissible
“Catch-All” Hearsay Exception
If hearsay isn’t covered by one of hte enumerated exceptions, court can still choose to allow it in if:
1) trustworthiness (examine circumstances in which statement was made and corroborating evidence)
2) necessary
3) rxble notice was given to opposing party of 1) substance of the statement and 2) name of the declarant
Confrontation Clause
A hearsay statement won’t be admitted (even if it falls under an exception) if:
1) being offered against criminal D
2) the declarant is unavailable
3) the statement was “testimonial” in nature
4) criminal D had no opp to cross-exam
Testimonial Statements (Confrontation Clause)
1) sworn testimony (GJ, prior trial, preliminary hearing)
OR
2) made to law enforcement
- to aid in an ongoing emergency, NOT testimonial
- to provide info for later prosecution, IS testimonial
OR
3) written reports of forensic analysis (such as fingerprint test results)
