Hearsay (Module 8)

Question 1

Hearsay Definition

Answer 1

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

Question 2

Nonhearsay in a Negligence Case

Answer 2

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

Question 3

Hearsay within Hearsay

Answer 3

Out of court statement that contains other hearsay is admissible only if the “outer” and “inner” hearsays both fall within an exception

Question 4

Prior Statements of Testifying Witness (Nonhearsay)

Answer 4

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)

Question 5

Opposing Party Statement (Nonhearsay)

Answer 5

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)

Question 6

Judicial/Extrajudicial Opposing Party Statements (Nonhearsay)

Answer 6

Formal judicial statements are conclusive

Informal judicial statements are not conclusive and can be explained

Have no idea

Question 7

Adoptive Opposing Party Statements (Nonhearsay)

Answer 7

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

Question 8

Hearsay Exceptions - Declarant Unavailable

Answer 8

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

Question 9

Grounds for Declarant Unavailability

Answer 9

PRISM

P - exempt bc of privilege
R - refuse to testify
I - incapacity
S - subpeona (failure to comply)
M - memory (lack of)

Question 10

Former Testimony Of Unavailable Hearsay Declarant

Answer 10

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

Question 11

Statements Against Interest (Unavailable Hearsay Declarant)

Answer 11

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)

Question 12

Dying Declarations (Unavailable Hearsay Declarant)

Answer 12

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)

Question 13

Statements of Personal/Family History (Unavailable Hearsay Declarant)

Answer 13

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

Question 14

Statement Offered Against Party Who Made Declarant Unavailable

Answer 14

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

Question 15

Excited Utterances

Answer 15

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

Question 16

Present Sense Impressions

Answer 16

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

Question 17

Present State of Mind (Hearsay Exception)

Answer 17

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”)

Question 18

Statements Made for the Purpose of Medical Diagnosis/Treatment (Hearsay Exception)

Answer 18

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

Question 19

Business Records (Hearsay Exception)

Answer 19

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

Question 20

Public Records (Hearsay Exception)

Answer 20

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)

Question 21

Recorded Recollection (Hearsay Exception)

Answer 21

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

Question 22

Learned Treatises (Hearsay Exception)

Answer 22

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

Question 23

Ancient Documents (Hearsay Exception)

Answer 23

Statement in any authenticated document made before 1/1/1998 are admissible

Question 24

Reputation Evidence (Hearsay Exception)

Answer 24

Is hearsay because it summarizes various out of court statements made by others, but is routinely admitted

Question 25

Family Records (Hearsay Exception)

Answer 25

Statements of fact concerning person or family history contained in family heirlooms, gravestone inscriptions, etc. are admissible

Question 26

“Catch-All” Hearsay Exception

Answer 26

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

Question 27

Confrontation Clause

Answer 27

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

Question 28

Testimonial Statements (Confrontation Clause)

Answer 28

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)