VI. HEARSAY Flashcards
A. 2-part definition
(1) Out-of-court statement of a person (oral or written) AND
- any statement other than the one made from the witness stand of this trial; drug dog bark, email cant be
(2) Offered to prove the truth of the matter asserted in the statement
- identify the matter asserted in the statement; identify the proposition its offered to prove; if they met it is hearsay
Hearsay rule: Hearsay is inadmissible unless an exception or exclusion applies.
B. Non-HearsayStatements
Some out-of-court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement. An out-of-court statement may be relevant to some issue simply because it was spoken (or written). If offered for some other purpose, credibility of the declarant is irrelevant. On the issue of whether the statement was spoken, the witness on the stand can be cross-examined; or if the statement was in writing, it can be examined as an exhibit.
C. Principal Categories of Non-Hearsay Purposes
1. Verbal Act (Legally Operative Words)
contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts (e.g., D is charged with theft of X’s car; D testifies, “As X handed me the keys, he said I could have the car for the weekend.”).
-Legally Operative Words; doesnt matter if what X said is truth or not, it is for D’s belief of he just borrow the car
C. Principal Categories of Non-Hearsay Purposes
2. To Show Effect on Person Who Heard or Read the Statement
HYPO 59. Plaintiff v. Supermarket. Plaintiff alleges she slipped and fell on a broken jar of salsa in aisle 3 and that Supermarket had prior notice of the dangerous condition. Plaintiff’s witness takes stand and proposes to testify: “Several minutes before Plaintiff entered aisle 3, I heard another shopper tell Supermarket manager, ‘There’s a broken jar of salsa on the floor in aisle 3.’” Inadmissible hearsay?
if it is for prove broken jar was there then hearsay
if it is for prove another relvant proposition, like store aware of the condition, to prove the store was on notice, not hearsay
HYPO 60. Sybil is charged with the murder of her husband Basil. To prove motive, the prosecutor seeks to introduce an anonymous note to Sybil that was found in her possession at the time of her arrest. The note stated, “Basil is having an affair with Polly.”
C. Principal Categories of Non-Hearsay Purposes
3. Circumstantial Evidence of Speaker’s State of Mind
HYPO 61. Homer is prosecuted for murder. Defense: Insanity. Witness for Homer proposes to
testify: “Two days before the killing, Homer said, ‘I am Elvis Presley. It’s good to be back.’”
D. Prior Statements of Trial Witness
General rule:
General rule: A WITNESS’S OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE unless an exception or exclusion applies.
D. Prior Statements of Trial Witness
3 Witness-Statement Exclusions from Hearsay (called “non-hearsay”):
- Witness’s prior statement of identification
- Witness’s prior inconsistent statement IF prior statement was under oath and made during formal trial, hearing, proceeding or deposition
- Prior consistent statement used to rebut charge of recent fabrication or improper motive or influence
-hypo reference
E. PartyAdmissions
- Any statement made by a party (plaintiff or defendant) is admissible against the party.
- Called “non-hearsay.”
- Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self.
E. PartyAdmissions
HYPO 64. Ma v. Life Insurance Co. for non-payment of policy proceeds on the life of Pa. Defense: Suicide. Defendant offers a letter by Ma to her friend in which she wrote, “When I came home from shopping I found Pa dead on the floor with his revolver nearby. I didn’t see what happened, but this was no accident. Pa did himself in.” Admissible despite Ma’s lack of personal knowledge?
yes; P’s statement offered against herself
the fact she was speculating is still within this exclusion
E. PartyAdmissions
Vicarious Admissions
Vicarious Admissions
Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during agency/employment.
F. Hearsay Exceptions
- Former testimony
- Statement against interest
- Dying declaration
- Excited utterance
- Present sense impression
- Present state of mind
- Declaration of intent
- Present physical condition
- Statement for purpose of medical treatment or diagnosis
- Business records
- Public records
Past Recollection Recorded
“Spontaneous” Statements (Unavailability Not Required) (4-9)
F. Hearsay Exceptions
Criminal Defendant’s Right of Confrontation:
Criminal Defendant’s Right of Confrontation: “Testimonial Statements.” Regardless of whether a hearsay exception is satisfied, the sixth amendment right of confrontation prohibits the use of “testimonial” hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross- examination. “Testimonial” statements include sworn testimony:
(1) at a grand jury,
(2) prior trial, or
(3) preliminary hearing, and
(4) responses made during police questioning, whether sworn or unsworn.
Example: Police interrogate defendant’s accomplice at the station house and elicit incriminating statements. At defendant’s trial, the accomplice refuses to testify. The accomplice’s statement to the police, even if it falls within a hearsay exception (e.g., statement against interest), cannot be used against the defendant because it is testimonial and there has been no cross-examination.
F. Hearsay Exceptions
Criminal Defendant’s Right of Confrontation:
exception
Exception: “Declarant Unavailable Due to Wrongdoing.” Any type of hearsay statements are admissible against a defendant who engaged in or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a trial witness. Theory: By making the witness unavailable through his own wrongdoing, defendant forfeits the sixth amendment objection.
Example: Tony is on trial for loan-sharking. Paulie made incriminating statements about Tony to the police and at a grand jury. Paulie was expected to be the key government witness at trial, but he has been found dead in the river. The court finds by a preponderance of the evidence that Tony is responsible for Paulie’s disappearance. Paulie’s grand jury testimony and interview statements to the police are admissible against Tony
F. Hearsay Exceptions
1. Former Testimony
(a) The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same.
- not grand jury testimony because no chance to cross
(b) Theory: reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable
F. Hearsay Exceptions
-Grounds of Unavailability:
TX
Grounds of Unavailability: 1, death or serious illness 2, absence from the jurisdiction 3, privilege 4, stuborn refusal to testify 5, lack of memory
Note: Same grounds of unavailability apply to all exceptions where unavailability is a requirement—former testimony, statement against interest, dying declaration.
Texas distinction: In civil actions, DEPOSITION of Witness taken in same proceeding is ADMISSIBLE without need to show that Witness has become unavailable.
