VI. Hearsay Flashcards
Generally
- Hearsay is
- an OUT OF COURT STAEMENT (oral or written)
- of a person (machine generated data not hearsay)
- OFFERED TO PROVE the truth of the matter asserted
- When the relevance of the out-of-court statement asks the fact finder to assume that the declarant (speaker or writer) was not lying or mistaken, the statement is hearsay
- must meet an exception
Non-hearsay statements
Just b/c it is said out of court does not mean it’s hearsay
First ask, how is this relevant–search for one that has a non-hearsay use
- Out-of-court statement is relevant for some purpose that does not depend on the credibility of the declarant, it can be admitted subject to a limiting instruction, if requested
- the mere fact that it was said, is enough to estalbished relevance
- E.g. A run light and hit B’s car. C goes to B’s car. B says he ran the light and hit me. C statement can be admitted to show that B did not die instantly; not to show that he ran the light
Major Categories of Nonhearsay
- Verbal Acts
- Effect on Hearer (or Reader
- Statement that Demonstrates a Relevant State of Mind
Nonhearsay: Verbal Acts
Legal Operative Words–words that have legal consequences just by their utterance (E.g. I accept on a contract)
Nonhearsay: effect on hearer (or reader)
- e.g. to show someone had notice of something, that htey had motive ,etc.
- When out of court satement has both hearsay use and a nonhearsay use, it is admitted, subject to a limiting instruction if requrested, and a rule 403 blancing test, if requetsed
Nonhearsay: Statement that Demonstrates a Relevant State of Mind of the Declarant
e.g. statement that someone said they were elvis presley–goes to showing their delusional
Prior Statements of Witness Testifying on the Stand
- A testifying witness’s OWN PRIOR STATEMENT, if offfered to prove the truth of the matter asserted in the satement is hearsay and is INADMISSIBLE unles an exception or exemption applies (e.g. witness says I did not do it, and i told the cops i did not do it)
- GA: Prior out-of-court statements are not hearsay but may not be used to bolster the credibility of the witness. Only allowed to do when there is a prior inconsisten statement; prior consistent statement logically rebuts attack on credibility; statement otehwise qualifies for an eception
Exceptions to Prior Statements of Witness Testifying on the Stand being hearsay
- WItness’s prior INCONSISTENT statement if made under oaht during a tirla, hearing proceeding or deposition (almost always come up on cross)
- WItness’s prior CONSISTENT statement if being used to rebut charge of recent fabrication or improper motive or influence (always come up on redirect)
- Witness Prior statement of identification (identifies them in court but also identified them in a lineup weeks prior)
All these exception admissible as nonhearsay IF AND ONLY IF the identifiying witness is AVAILABLE FOR CROSS EXAMINATION
Party Interests
- any statement made by a party is admissible if it is offered by the opponent
- Admissible over object even if not based on personal knowledge, unqualifeid opinion or speculation–> SUPER ADMISSIBLE
- Party Admission does not have to be against a party’s interests at the time it was made
- EX. LIfe insurance dispute where insurer says insured killed himself. Text to friend where plaintiff says “I found him at home; he shot himself with a revolver”
- GA: Government aganets are not admissions of the state in a criminal case
Agent Admissions
- Statements made by a party’s agent/employee is admissible IF
- 1) statement was made DURING THE AGENCY/EMPLOYMENT AND
- 2) statement concerns a matter the agent or empoyee would KNOW BY VIRTUE OF HIS DUTIES
- EX. Truck driver hits woman’s car. Driver told woman, sorry, i was getting a beer when i hit your car. Woman sues company–admissible against them
Co-Conspirator’s Statements
- Admissible against the accused in a criminal case if:
- 1) made DURING THE CONSPIRACY of which d was part; AND
- 2) statement made IN FURTHERANCE of conspiracy
- Can apply after the crime has been committed if there is a conspiracy to conceal the crime
Hearsay Exceptions
- Speaker Not Available
- Forefiture by Wrongdoing
- Former Testimony
- Statement Against Interest
- Dying Declaration
- Speaker Available
- Present SEnse IMpression
- Excited Utterance
- Present State of Mind
- Declaration of Intent
- Present Phsycial Condition
- Statement for Purpose of Medical Diagnosis or Treatment
- Business Records
- Public Records
- (Past recollection recorded, learned treatises)
Criminal Defendant’s Right of Confrontation Under VI Amendment
- Crimnal defendant has the right to confront the witness against him
- does not apply in civil
- does not apply in the evidence defendant proffers
- Means that prosecution may not use a hearsay statement aginst defendant at trial EVEN IF IT FALLS WITHIN AN EXCEPTION if:
- hearsay is TESTIMONIAL,
- the declarant is UNAVAILABLE AND
- the defendant has had no opportunity to CROSS the declarant
What makes a statement testimonial
First, if the statement offered agains the accused was NOT MADE to an agenet of the government, it is almost certainly NOT testimonial
1) STATEMENT WS IN RESPONSE TO QUESTIONS BY AN AGENT OF THE STATE (police, prosecutor, etc.)
- Follow the Primary Purpose Test: if the primary purpose of taking the statement was the investigation and collection of evdience concerning a crime–statement is tstimonial (defendant’s statement to police and now defendant will not testify)
- Nontestimonial if the primary purpose was to deal with an ONGOING EMERGENCY
- still must satisfy hearsay rules
2) A STATEMENT INITIATED BY A CITIZEN TO THE POLICE, REPORTING A CRIME, WHEN THE DEFENDANT WOULD BE AWARE THAT HIS STATEMENT WOULD BE USED TO INVESTIGATE AND PROSECUTE THE PERPETRATOR
* if the call’s primary was made to get help for a victim, then it is nontestimonial
Requirements for someone to be unavailable to testify
- Dead
- Too Ill to attend term of court
- cannot be located by due dilligence
- Outside the reach of subpeona
- privilige to not testif y
These same
