Hearsay with Exceptions and Exclusions

Question 1

“Out of court”

Answer 1

“Out of court” means that the declarant must make the statement at some time and place other than while testifying at the trial or hearing. a.This includes a declarant repeating his own prior out- of- court statement.

Question 2

Nonhearsay purpose

Answer 2

An out of court statement may be nonhearsay because it is not being offered for truth of the matter asserted such as in the following situations where evidence is offered to show:

1. Effect on listener or reader , such as being put on notice, having certain knowledge, had a certain emotion, or behaved reasonably or unreasonably.
2. Declarant’s state of mind a. Knowledge of facts, or b. Mental state (e.g., declarant stating “I’m Abraham Lincoln” is offered not to prove its truth, but that the delarant is delusional).
3. Legally operative fact. A statement that itself has legal significance (e.g., solicitation, defamation, words establishing a contract).

Question 3

Multiple hearsay

Answer 3

Multiple hearsay occurs where an out- of- court statement quotes or paraphrases another out- of- court statement. Each level of hearsay must fall within an exception to be admissible.

Question 4

Policy

Answer 4

The following policies behind the hearsay rule and hearsay exceptions can provide key points of analysis in an essay question.

1. Rule purpose: The purpose of the hearsay rule is that some communications are suspect because of the danger of misinterpretation without the speaker present to clarify. The hearsay dangers are ambiguity, insincerity, incorrect memory, and inaccurate perception.
2. Exception purpose: The purpose of the hearsay exceptions is that where circumstances provide an aura of authenticity to a statement, it should be admissible.

Question 5

Admissions

Answer 5

Admissions are excluded from hearsay and will be admitted.

Question 6

Party admission

Answer 6

A party admission is any statement made by a party, and it may be offered against him. The statement need not be against declarant’s interest. CEC calls this a hearsay “exception” not “exemption.”

Question 7

Adoptive admission

Answer 7

An adoptive admission is a statement made by another where the party knows of its content and voluntarily manifests belief in the truth of the statement by words or action.
a. Silent adoptive admission: Adoptive admission can be made by silence if a reasonable person would have spoken up , but always subject to the Fifth Amendment right to remain silent. For example, if at an accident scene one party says, “it’s all your fault,” this may be an adoptive admission by silence because a reasonable person would have refuted the statement if he was not at fault.

Question 8

Vicarious admission

Answer 8

A vicarious or representative admission can arise two ways.
a. Explicit authorization: A statement made by an authorized spokesperson of party.
b. Employee or agent: A statement made by an agent/employee of the party concerning a transaction within the scope of the agent/employee relationship , and made during the existence of the relationship.
CEC is more narrow: A statement by an employee of a party is a party admission of employer only where negligent conduct of that employee is the basis for employer’s liability in a case of respondeat superior.

Question 9

Co- conspirator admissions

Answer 9

Co- conspirator admissions are statements made during course of the conspiracy and in furtherance of conspiracy. a. Confrontation Clause: However, a co- conspirator admission is subject to the confrontation clause requirement that a defendant is allowed to confront his accusers, so if the co- conspirator refuses to testify, the co- conspirator admission will not be admitted.

Question 10

Medical diagnosis or treatment statements: (Spontaneous, excited, or contemporaneous statement hearsay exceptions)

Answer 10

A statement made for the purpose of medical diagnosis or treatment is admissible.

a. Statement may be made by third person if to help obtain treatment.
b. Statement may include the cause of the condition, but not statements of fault .
c. CEC: Statement of past physical condition is only admissible if made to obtain medical diagnosis and treatment by a child abuse victim .

Question 11

Statement of then- existing mental, emotional, or physical condition (Spontaneous, excited, or contemporaneous statement hearsay exceptions)

Answer 11

Statement of then- existing mental, emotional, or physical condition is admissible to show the condition or state of mind. a. Does not apply to a statement of memory or belief.

Question 12

Present sense impression (PSI) (Spontaneous, excited, or contemporaneous statement hearsay exceptions)

Answer 12

A statement is admissible if describing or explaining an event or condition and made while declarant was perceiving the event or condition or immediately thereafter. a. CEC contemporaneous statement: Applies to a statement explaining conduct of the declarant and made while the declarant engaged in that conduct (narrower than FRE).

Question 13

Excited utterance (Spontaneous, excited, or contemporaneous statement hearsay exceptions)

Answer 13

A statement is admissible if relating to a startling event or condition and made while the declarant was still under the stress of excitement caused by the event or condition.

Question 14

Prior inconsistent statement (PIS) : (Prior statements of available witnesses).

Answer 14

A PIS is substantively admissible , not merely for impeachment purposes, if:

a. Oath: The PIS was made under oath as part of a formal proceeding.
b. Cross examination: The declarant is subject to cross examination concerning the PIS.

Question 15

Prior consistent statement (PCS) (Prior statements of available witnesses)

Answer 15

A PCS is only admissible substantively if offered to rebut a charge of recent fabrication, or improper motive. It need not be made under oath. 3. Prior identification of a person, made after perceiving the person, is substantively admissible if the declarant testifies at trial.

Question 16

Prior identification of a person (Prior statements of available witnesses)

Answer 16

Prior identification of a person, made after perceiving the person, is substantively admissible if the declarant testifies at trial.

Question 17

Past recollection recorded (Document hearsay exceptions )

Answer 17

If a witness cannot testify from memory , a party may introduce a written record of an event.

a. Requirements must be satisfied
1. Firsthand knowledge of the sponsoring witness.
2. Events were fresh in the memory when record was made.
3. Witness now has impaired recollection.
4. Record was accurate when written .
b. Document read to jury: The writing itself is not admissible but may be read to the jury.

Question 18

Document read to jury (Document hearsay exceptions )

Answer 18

The writing itself is not admissible but may be read to the jury.

Question 19

Business record (Document hearsay exceptions )

Answer 19

Business record is admissible where a sponsoring witness establishes the record was kept in the course of regularly conducted business activity.

a. Business activity includes events, conditions, opinion, or diagnosis. CEC: Does not allow opinions or diagnoses.
b. Regular practice to keep such a record.
c. Personal knowledge: Made by a person with personal knowledge.
1. Firsthand knowledge by original supplier of information.
2. Business duty to report: The record must be made by one with a business duty to report.
d. Timeliness: Made at or near time of matters indicated

Question 20

Hearsay

Answer 20

Hearsay is an out- of- court statement offered for the truth of the matter asserted.

Question 21

Public records and reports-Document hearsay exceptions

Answer 21

Public records and reports are admissible if within one of the following categories:

a. Agency’s record of its own activities.
b. Matters observed in the line of duty and under a duty to report.
c. Investigative reports with factual findings resulting from investigations made.
d. Criminal case limitation— FRE only: Criminal prosecution cannot use matters observed by police officers or police investigations against a criminal defendant. (CEC does not have the limitation.)

Question 22

Learned writings and commercial publications-Document hearsay exceptions

Answer 22

Learned writings and commercial publications

a. FRE: Admissible if called to the attention of an expert witness and established as reliable authority.
b. CEC: Admissible only for facts of general notoriety and interest.

Question 23

Witness unavailable-Declarant unavailable hearsay exceptions

Answer 23

The witness’s unavailability must be established in one of the following ways:

a. Privileged from testifying.
b. Death or illness prevents witness from testifying.
c. Reasonable means can’t procure the witness.
d. Witness refuses to testify despite a court order. CEC requires refusal be made out of fear.
e. Witness unable to remember. CEC requires total memory loss.

Question 24

Four hearsay exceptions requiring unavailability

Answer 24

1. Former testimony
2. Dying Declaration
3. Declaration Against Interest
4. Forfeiture by wrongdoing

Question 25

Former Testimony

Answer 25

Former testimony is admissible where the party against whom the testimony is now offered had, during the earlier hearing or deposition, an opportunity to examine that person and a similar motive to develop the testimony. Civil cases only:

a. FRE only: Allows predecessor in interest to have been present in earlier proceeding to develop testimony.
b. CEC only: Allows if anyone with a similar interest was present in earlier proceeding, or it is being offered against the person who offered it on her own behalf in the earlier proceeding, or against a successor in interest of such person.
c. CEC only: Deposition testimony given in the same civil action is admissible for all purposes if deponent is unavailable at trial or lives more than 150 miles from the courthouse.

Question 26

Dying declaration

Answer 26

A dying declaration is admissible where a statement is made by a declarant, while believing his death was imminent, and is concerning the cause or circumstances of his impending death.

1. FRE: Only allowed in civil and criminal homicide cases, and declarant need only be unavailable, not dead.
2. CEC: Applies to all civil and criminal cases and declarant must actually be dead.
3. CEC “OJ” Exception— statement describing physical abuse: Applies to allow a statement made at or near the time of injury or threat, describing infliction or threat of physical abuse, in writing, recorded, or made to police or medical professional, under trustworthy circumstances.

Question 27

Declaration against interest

Answer 27

A declaration against interest is admissible if, at the time it was made, it was against the declarant’s financial or penal interest.

1. FRE: If offered to exculpate the accused, there must be corroborating evidence.
2. CEC: Includes a statement against one’s social interest.
3. Note: The Confrontation Clause may keep the statement out of evidence.

Question 28

Forfeiture by wrongdoing

Answer 28

A hearsay exception will apply where a party has engaged in witness tampering intended to make the witness unavailable.

Question 29

Residual “catch-all” hearsay exception

Answer 29

An otherwise hearsay statement may be admissible if trustworthy, is regarding a material fact, is more probative on the point than other evidence, and notice is given to the opposing side.