VI. Hearsay

Question 1

Hearsay

Answer 1

An out of court statement offered to prove the truth of the matter asserted.

Declarant must be a person

Statement: oral, written, assertion of nonverbal conduct

If offered to prove something other than the truth of the matter asserted (legally operative facts, effect on recipient, state of mind, and impeachment) not hearsay.

Multiple hearsay: may be admissible as long as each part of combined statement conforms to hearsay.

Question 2

Non-hearsay prior statements

Answer 2

Declarant must testify at present trial to be admissible, can’t apply if witness is dead or otherwise unavailable to testify.

Prior inconsistent statements made under penalty of perjury admissible to impeach declarant’s credibility AND as substantive evidence

Prior consistent statement admissible to rebut express/implied charge that declarant recently fabricated it or acted w/ improper motive, but must be made before declarant had reason to fabricate.

Prior statement of identification of a person after perceiving that person is admissible as non-hearsay substantive evidence even if witness has no memory of the identification.

In NC a witnesses prior inconsistent statement, prior consistent statement, and prior statements of identification are not excluded from the hearsay rule, but may be used for non-hearsay purposes like impeachment.

Question 3

Non-hearsay opposing party’s statement

Answer 3

Made by a party to the current litigation; admissible w/out personal knowledge and can be in form of an opinion; need not have been against party’s interest at the time it was made.

Judicial admission: an admission made during a pleading, discovery process or proceeding is conclusive evidence.

W/drawn guilty plea is generally not admissible in subsequent proceedings.

Adoptive admission: statement of another person that party expressly/impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if: the person was present and heard and u/s the statement; the person had the ability and opportunity to deny the statement; and a reasonable person similarly situated would have denied the statement.

Vicarious statements: statement made by one person imputed to another based upon relationship between them.

Statements of coconspirators.

NC: the same categories of admissions are called hearsay exceptions.