Just Hearsay

Question 1

Prior Inconsistent Statement

Answer 1

NOT HEARSAY when used to IMPEACH witness
The statement isn’t offered for the “truth of the matter asserted” [CA diff]
It’s offered to show that the witness has said different things at different times

TRUTH of the matter requires the exception ie trial

Question 2

Hearsay Analysis Steps

Answer 2

1. Witness referring to a statement, by a human, that occurred outside the courtroom?
2. Did the statement occur outside court? (Are you sure it’s a “statement”?)
3. Is it offered to prove the truth asserted?
4. Does an exception apply?
5. Does the 6th Amendment limit use of the statement?

Question 3

FRE 801(a) / CA too: Statements

Answer 3

“a person’s oral assertion, written assertion, or nonverbal conduct intended as assertion”

Declarant + Assertion = Statement
Human + Intentional Communication

Human using machine to make statement still counts
Statements Need Not be Verbal

Question 4

Four Categories of Hearsay Exception

Answer 4

Rule 801(d): “Not” Hearsay [CA: just exceptions, not exemptions as in FRE]
Rule 804: Declarant Not Available
Rule 803: Availability Immaterial
Rule 807: Residual Exception (Not in CA)

Question 5

Prior Statements by Witnesses (801)

Answer 5

FRE 801(d) prior statement also admissible for TRUTH, but some added requirements, including prior statement given under penalty of perjury at a proceeding

801(d)(1)(A): Prior Inconsistent Statement [Cal EC 1235; 770]
801(d)(1)(B): Prior Consistent Statement [Cal EC 1236; 791]
801(d)(1)(C): Prior Identification [Cal EC 1238]

Question 6

Prior Inconsistent Statement (801) allowed factors

Answer 6

Allowed if:

1. Declarant testifies at trial given under penalty of perjury
2. Declarant subject to cross
3. Prior statement is inconsistent with courtroom testimony

Question 7

801(d)(1)(B): Prior Consistent Statement

Answer 7

Allowed if:

1. Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement is consistent with courtroom testimony; recall it need not be made under oath or in a proceeding
4. Witness’s credibility has been attacked (note: prior consistent statement has to come before inconsistent stmt)
5. Statement probative for rehabilitation

Question 8

801(d)(1)(C): Prior Identification

Answer 8

1. Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement was identification of person

Question 9

Present Sense Impression

Answer 9

1. Only applies to descriptions or explanations of events, not analyses or interpretations
2. Declarant must speak while perceiving event or “immediately after” (i.e., no more than a few seconds)
3. Time lapse so short as to preclude time to create a lie (a few minutes, if not seconds)

Question 10

Excited Utterance

Answer 10

1. Declarant must speak while personally excited by the startling event (NOT objective std)
2. Excited utterance must relate to the startling event (but can go beyond description to analysis or interpretation)
3. Longer time frame allowed, so long as still excited & about event
4. Written statement not barred, so long as little time for reflective thought (e.g., ”OMG…” text)

Question 11

FRE 803(3) State of Mind

Answer 11

Covers what one is currently feeling but not extended analysis
Can be:
1. then-existing state of mind (such as motive, intent, or plan) or
2. emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
3. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 12

Hillmon (state of mind)

Answer 12

Many courts allow parties to introduce state of mind referring to future actions of another (CA appears to, as well as 9th Cir.)
Irresistible appeal of victim’s parting words (in murder or abduction cases)

Question 13

Medical Treatment

Answer 13

1. Made for medical diagnosis/treatment (subjective)
2. Must be reasonably pertinent to such diagnosis/treatment (objective)

Describes:
Medical history
Description of past or present symptions/sensations
Reports of cause of condition

Generally exclude statements blaming cause
No contemporaneous req: OK back in time
External facts OK if pertinent to med care

Question 14

Weird things allowed under Medical Treatment even though cause-based:

Answer 14

Gloria sues police for physical & emotional injuries from unlawful arrest; Goes to MD after release; MD testifies re her anxiety & pain in wrist, shoulder, back:

Handcuffed behind back
Gun pointed at her face
Put in cold squad car w/poor ventilation

All above allowed under medical exception thanks to 4th circuit

Question 15

Recorded Recollection

Answer 15

Six Foundation Elements

1. Record (incl. memo, report, data compilation, tape recording)
2. Witness made or adopted that record
3. Witness once had personal knowledge
4. Witness made or adopted the record when that knowledge was fresh
5. Witness testifies that info was accurate
6. Witness has forgotten

Then witness reads it into record! (only adverse party can admit)
But once foundation laid & evidence read, this hearsay may be considered for truth

Question 16

Hearsay Within Hearsay

Answer 16

FRE 805

Find an exception for every layer!

Question 17

Business Records

Answer 17

1. Need to have a business (very broadly defined) which has records that contain facts (opinions and conclusions too)
2. Need a qualified witness or other certified person to lay the foundation for the records.
   a. They are the person with knowledge of the records
   b. At or near the time
   c. In the course of a regularly conducted business activity
   d. Business’ regular practice to make the record
   e. Foundation laid by custodian (or any person with knowledge of the records)

Finally, you rebut any showing that circumstances indicate lack of trustworthiness

How to defeat? Show unreliable, prepared in anticipation of litigation, etc
Business emails count
Watch for double hearsay in records

Question 18

Public Records (overview)

Answer 18

1. Make sure you have a public record
2. Records of the office’s activities.
3. Observations (by the agency itself, not outsiders) pursuant to duty
4. Except matters observed by law enforcement personnel are not admissible against criminal D.
5. Unless the observation was ministerial. (done all the time, not specific, neutral, try to argue (good example: license plate crossing border, calibration record of intoxalyzer)
6. Results of an investigation by any public office are not admissible against a criminal defendant
7. Records are not admissible if they lack trustworthiness.
8. Statements by third parties require a separate hearsay exception

Question 19

Absence of Records: FRE 803(7) & (10)

Answer 19

1. Still must show records generally fit biz/public exception
2. Custodian or other qualified wit shows absence relates to matter about which records were kept
3. In FED crim case, prosecution must give defense notice if proving absence thru certification only (so defense can call official)
   Ie. No record of license

Question 20

Ancient Documents

Answer 20

1. Document has existed for 20 years or more (CA: 30 yrs)
2. Authenticity established
3. Watch for hearsay within hearsay

Question 21

Market Reports and Similar Commercial Publications

Answer 21

Data compilation

Generally relied on

Question 22

Learned Treatises

Answer 22

1. May come from any field
2. Offer substantive evidence
3. As long as accepted as reliable authority
4. Two peculiarities:
   a. Must accompany expert witness
   b. Read excerpts into record (so like recorded recollection)

Question 23

5 types of Unavailability:

Answer 23

1. Privilege
2. Refusal to Testify
3. Lack of memory (real or feigned)
4. Death or Illness
5. Absence (& unserved)

Question 24

Former Testimony (unavailability)

Answer 24

FRE 804(b)(1) ; Cal EC 1290

1. Declarant is unavailable
2. Prior statement was given at a trial, hearing, or deposition
3. Opponent [predecessor] had opportunity to develop testimony
4. Opponent had similar motive to develop testimony

No grand jury! No police statements!

Question 25

Dying Declarations

Answer 25

FRE 804(b)(2) ; Cal EC 1242

1. Declarant is unavailable
2. Applies only to homicide prosecutions and civil proceedings [NO SUCH CAL LIMIT]
3. Declarant subjectively believed death was imminent
4. Statement concerns cause or circumstances of death

Question 26

Statement Against Interest (unavailable)

Answer 26

FRE 804 (b)(3) ; Cal EC 1230

1. Declarant unavailable
2. Statement was against interest *
3. At the time it was made
4. Corroboration for statements against penal interest when offered in criminal case*

Three types 
Pecuniary or proprietary interest 
Civil or criminal liability 
Render invalid a claim 
CAL: against social interest also

Question 27

Forfeiture

Answer 27

FRE 804(b)(6) ; Cal EC 1390

1. Declarant unavailable
2. Other party engaged or acquiesced in wrongdoing
3. Intended to cause unavailability
4. Wrongdoing caused unavailability

Tricky Spots
Persuasion and begging aren’t “wrongdoing”
Opposing party must specifically intend to make declarant unavailable
Courts construe acquiescence broadly (including if part of conspiracy, even if party didn’t know)

Government must prove wrongdoing by a preponderance of the evidence

Question 28

Statements by an Opposing Party

Answer 28

FRE 801(d)(2) ; Cal EC 1220-1
Opposing Party Exemption is Very Broad 
Applies to any statement by a party 
Statement does not have to be an admission
Party’s availability is immaterial

Opposing Party: Two Limits

1. Declarant must be a party NOT victim in criminal prosecution
2. Statement must be offered against the party/declarant e.g.: defendant can’t offer own self-serving statement

Question 29

Adoptive Admissions

Answer 29

1. Silence as adoption – In criminal cases, examine circumstances carefully (can’t use post-Miranda silence, or police interrogating questions asked w/o Miranda)
2. Statements of agents or employees

Question 30

Statements of Co-conspirators (Exemption)

Answer 30

FRE 801(d)(2) (E) ; Cal EC 1223

1. Out-of-Court Statement Is Admissible Against a Party If It Was . . .
2. Made by a coconspirator
3. During the course of the conspiracy
4. And in furtherance of the conspiracy ← important

Question 31

Residual Exception

Answer 31

Very rare but:

1. Statement still trustworthy
2. Most effective way to prove fact, & other admissible evidence not reas to find
3. Existing hearsay exception inapplicable, but close
4. Must give notice to opponent of intent to use at trial

Question 32

“Do we care” hearsay test

Answer 32

Do we care if its true for why its in? if not then it may hit a hearsay exception

Question 33

Hearsay Categories:

Answer 33

NOT HEARSAY:
Prior statements (inconsistent, consistent, ID)

UNAVAILABILITY IMMATERIAL:
Present Sense
Excited Utterance
State of Mind
Medical Treatment
Business Records
Recorded Recollection
Public Records
Ancient etc

UNAVAILABILITY IMPORTANT:
Former Testimony
Dying Declaration
Statement Against Interest
Forfeiture

OTHER:
Statement Against Party Opponent
Co-Conspirator