What Types of Evidence Are Admissible? Hearsay; Authentication & Identification

Question 1

hearsay - definition (4 parts)

Answer 1

– 1. An out of this court (i.e., all statements except those made by witnesses during the current trial while testifying before the trier of fact)

– 2. statement (i.e., oral, written, or non-verbal conduct intended as an assertion)

– 3. made by a human declarant (not animals or machines)

– 4. offered for the truth of the matter asserted (as opposed to a relevant, non-truth purpose)

Question 2

hearsay - “offered for the truth of the matter asserted” (define; distinguish things like verbal acts and notice to/effect on listener)

Answer 2

• A statement is “offered for the truth of the matter asserted” when it is offered to prove its contents (e.g., P offers X’s statement that “D’s light was red” to prove that D ran a red light). There are two categories of statements that are not offered for the truth of the matter asserted (and thus are not hearsay) one should know for the UBE:

– Verbal Acts (i.e., Legally Operative Facts): A statement that gives rise to legal consequences when offered to show those legal consequences, such as offers, acceptances, contracts, deeds, warranties, wills, trusts, defamation, solicitation, conspiracy, fraud, bribery, and waivers.
» Verbal Parts of Acts: A statement accompanying an ambiguous physical act, such as a statement of gift or a statement of permission.

– Notice to or Effect on the Listener: Statements that put someone on notice (e.g., five minutes before P fell, I told D that the floor was wet) or that show the effect on the listener (e.g., the day before D killed V, I told D that V was “gunning for him” is admissible to prove that D thought he was acting in self-defense).

Question 3

hearsay - 2 general admissibility rules

Answer 3

• 1. If a statement fits within the definition of hearsay, it is inadmissible, unless the proponent proves that it (1) qualifies as definitional non-hearsay (FRE 801(d)); or (2) qualifies for one of the many hearsay exceptions (FRE 803, 804, 807). In either case, the statement is admissible as substantive evidence.
• 2. If a statement is hearsay and does not qualify as definitional non-hearsay or for a hearsay exception, it may not be admitted as substantive evidence, but sometimes may be used for non-substantive purposes, such as impeaching a witness (FRE 613) or as a basis for an expert’s opinion (FRE 703).

Question 4

hearsay - R801(d)(1) - prior witness-declarant statements (3)

Answer 4

– The following prior statements by a witness (who is in court testifying AND subject to cross) are admissible as NONHEARSAY:

• prior inconsistent statements made at trials, hearings (including grand juries), and depositions under oath
• prior consistent statements to refute a charge of recent fabrication (the prior statement must predate the event—e.g., a bribe—alleged to have caused the fabrication) or to rehabilitate the credibility of the witness when attacked on other non-character grounds, such as faulty memory or inconsistency (but not criminal convictions, prior acts of untruthfulness, or reputation or opinion testimony regarding the witness’s untruthfulness)
• prior visual identifications (e.g., line-ups, show-ups, mug shots, preparing or identifying composite sketches) of persons (these statements may be offered by the person making the ID or anyone who witnessed it - BUT THE WITNESS WHO MADE THE ID STILL NEEDS TO BE AVAILABLE TO TESTIFY)

Question 5

hearsay - R801(d)(2) - prior opposing-party statements (4); key thing to remember to check

Answer 5

– Statements (including opinions and conclusions) made by a party that are offered against that party are admissible as NONHEARSAY, including:

• statements made by a party’s authorized spokesperson

• statements made by a party’s agent or employee if the statement concerns a matter within the scope of the person’s agency or employment and is made during the course thereof
»> **so they don’t have to be on the clock, but they have to be talking about something that concern’s their employment, not just anything they say about their employer (and the statement must have been made while they were employed)

• statements that a party hears and either expressly adopts or remains silent (silent adoption constitutes an admission only if an ordinary person would naturally refute or deny the statement which, because of Miranda, never occurs in response to statements by police during custodial interrogation)
»> ex) “Geez, you must have robbed a bank!” doesn’t warrant a response because it is well assumed to be a joke
»> **the statement itself that the party heard and “adopted” will be admissible (regardless of hearsay) to give context to the adoptive admission

• statements of co-conspirators made in furtherance of (i.e., advances the conspiracy’s objectives) and during the course of the conspiracy

– **party who made the statement doesn’t need to have PK of the events they talk about

– **remember to double check that it is a party OPPONENT
»> **the victim in a criminal case is a witness, not a party to the case

– **just because you are co-parties does not mean the statement of one counts for the other!

Question 6

hearsay - R803(1)-(2) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (present sense impression; excited utterance)

Answer 6

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• Present Sense Impression: a statement “describing or explaining” an event or condition made while the declarant is perceiving it or immediately thereafter
»> in essence, the person wouldn’t have had the time to make up a lie

• Excited Utterance: a statement made while the declarant is under the stress of a startling event “that relates” to the event (e.g., “Oh my God! Bill’s car just ran over that child.”); this rule has a longer time period than present sense impression, but is probably limited to minutes in most cases (just base it off of whether or not they were still “under the stress of the event”)

– remember: time to reflect suggests time to fabricate

Question 7

hearsay - R803(3)-(4) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (state of mind/emotion; physical condition)

Answer 7

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• State of Mind or Emotion. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotion, sensation, or mental feeling, but not a statement of memory or belief about past actions or events, unless it relates to the validity or terms of the declarant’s will.

• Physical Condition.
– A statement of the declarant’s then-existing bodily condition, pain, or symptoms (“My back hurts now”) regardless of the purpose for which such statement is made.
– A statement of the declarant’s medical history, past or present pain or symptoms, or the general cause of the pain or symptoms if made for purposes of medical diagnosis or treatment to a health-care provider (physician, nurse, EMT, testifying expert-physicians, etc.) or to a third party to pass on to a health-care provider.
»> To be admissible, the statement must be relevant to diagnosis or treatment (“I was hit by a car” is relevant to diagnosis and treatment, but “the car ran a red light” or “the car was driven by Mike Jones” is not).

Question 8

hearsay - R803(5) - exception of past recollection recorded

Answer 8

– The following statements are admissible as exceptions to the hearsay rule:

• A prior record (written, audio, or video) by the witness about a matter for which she once had personal knowledge, but now is unable to recall the matter well enough to testify fully and accurately, if such a record was reliably created (or adopted) by the witness when the matter was fresh in her memory

– Even if all of the conditions of FRE 803(5) are satisfied, the record is not automatically admissible as an exhibit; the witness may only read it out loud (or play it) to the jury. The opposing party, however, may admit the record into evidence

– Although this exception is contained in FRE 803 for which the availability of the declarant is generally irrelevant, FRE 803(5) requires the declarant to testify at trial

Question 9

hearsay - FRE 803(6), (7), (8) & 10 - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (business/public records)

Answer 9

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• Regularly made and maintained business, public, official, religious, medical, or commercial records; to be admissible, such records:

– must be made in the regular course of the enterprise at or near the time the events contained in the document occurred; the information contained therein must have been provided by someone with a duty to the enterprise to report such information (i.e., an employee) with personal knowledge; and

– all of these conditions must be established by the testimony of a custodian of records or another qualified witness or by certification (need not have knowledge of the contents or circumstances in which it was made, just knowledge of the record keeping system)

– Such records are inadmissible if the opponent shows that the records lack trustworthiness or are unduly self-serving
»> Documents made in anticipation of litigation (e.g., accident reports) usually lack trustworthiness.
»> ***Police reports are not admissible against an accused in a criminal case.

• The absence of such a record is admissible to prove that the record does not exist and that the event (which would have been recorded therein) did not occur.

– **commonly includes hearsay within hearsay

Question 10

hearsay - FRE 803(9) & (11)-(15) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (vital statistics; records of religious organizations)

Answer 10

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• Vital Statistics. A record of birth, death, or marriage reported to a public office.
• Records of Religious Organizations. A statement or certificate of birth, legitimacy, ancestry, baptism, marriage, divorce, death, etc. contained in a regularly kept record of a religious organization.

Question 11

hearsay - FRE 803(9) & (11)-(15) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (family records; documents that affect an interest in property)

Answer 11

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
• Documents That Affect an Interest in Property. A publicly recorded document that purports to establish or affect an interest in property or a statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose.

Question 12

hearsay - FRE 803(16) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (“ancient documents”)

Answer 12

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• A statement in a document that was prepared before January 1, 1998, the document was found in a place where it would normally be, and the document’s authenticity is established.
»> contrast with authentication exception timeline of 20 years old

• Such documents also qualify for authentication under FRE 901(8).

Question 13

hearsay - FRE 803(17) & (18) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (market quotations; learned treatises)

Answer 13

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• Market quotations (e.g., stock prices in the Wall Street Journal), lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations

• Learned treatises when used to question your own or an opponent’s expert if ANY expert (even the testifying expert) testifies that the treatise is authoritative in the field or the judge takes judicial notice of its authoritative status
»> Relevant portions of the treatise may only be read to jury

Question 14

hearsay - FRE 803(19)-(23) - statements that are admissible as exceptions to the hearsay rule regardless of the availability of the declarant (reputation testimony; judgments)

Answer 14

– The following statements are admissible as exceptions to the hearsay rule regardless of the availability of the declarant:

• Reputation testimony concerning
– personal or family history
– the boundaries of land or historic events
– a person’s character (e.g., this is the hearsay exception that corresponds to the character evidence rules)

• Judgments (this is your go to for seeing if convictions can come in substantively)
– of previous felony convictions (e.g., for use in collateral estoppel); the judgment may be based on a trial or a guilty plea
»> the conviction must be for a crime punishABLE by death or imprisonment for more than a year; the actual sentence is irrelevant
»> judgments for felonies and misdemeanors are admissible to impeach a witness under FRE 609(a)(2)
»> **you can only go criminal > civil (not the other way around)
– involving personal or family history
– involving historic events or boundaries of land

Question 15

hearsay - FRE 804 - the following statements are admissible as exceptions to the hearsay rule if the declarant is unavailable as a witness (former testimony; statements against interest)

Answer 15

• Former Testimony: former testimony (at a trial, hearing, or deposition) of the declarant offered against a party (or, in a civil case, a party’s predecessor in interest, such as the prior owner of real property) who had an opportunity (need not have actually exercised that opportunity) and similar motive to fully examine the witness
»> **remember, in a grand jury setting, you do not have the option to cross-examine witnesses

• Statements Against Interest: statements against the declarant’s pecuniary, property, or penal interests at the time they were made
»> statements that subject individuals to “social disgrace” alone are insufficient!
»> to be admissible, the statement must be based on the declarant’s first-hand knowledge of the facts, not opinion or speculation
»> if the statement exculpates a criminal defendant, it is admissible only if there is corroboration of the declarant’s guilt

Question 16

hearsay - FRE 804 - the following statements are admissible as exceptions to the hearsay rule if the declarant is unavailable as a witness (dying declarations; statements of pedigree; forfeiture by wrongdoing)

Answer 16

• Dying Declarations: in a prosecution for homicide (**not attempted homicide) or in a civil case, a statement by the declarant, while believing his death was imminent, about the cause or circumstances of his death
»> In a civil case, a dying declaration may be admitted into evidence even if the declarant survives, as long as (1) the declarant made the statement while believing her death was imminent, and (2) the declarant is unavailable at trial.
»> CUBA: Concern the cause/circumstances of the death; Unavailable declarant; Belief that death was imminent; Any civil case or criminal homicide case

• Statements of Pedigree: statements of personal or family history made by a member of the family or someone intimately associated with the family (e.g., longtime housekeeper)

• Forfeiture By Wrongdoing: otherwise inadmissible hearsay statements of a declarant (now unavailable as a witness) when offered against a party who has engaged in wrongdoing that INTENTIONALLY procured the declarant’s unavailability as a witness (e.g., declarant’s statement to the police is admissible against a party who killed the declarant to eliminate him as a witness)
»> A criminal defendant also forfeits his Sixth Amendment right to confront witnesses by committing a wrongful act that was intended to keep a witness from testifying

Question 17

hearsay - R805 - multiple layers of hearsay

Answer 17

– To be admissible, an exception must be provided for each layer of hearsay if the statement contains multiple layers of hearsay. In other words, both the outer hearsay statement and the inner hearsay statement must qualify for hearsay exceptions (or as definitional non-hearsay under FRE 801).

– example: police report containing witness statements

Question 18

hearsay - R807 - catchall exception

Answer 18

– If a hearsay statement does not fit within any of the enumerated exceptions it may fit within the catch-all exception if it:

• has sufficient guarantees of trustworthiness after considering the totality of the circumstances under which it was made and any corroborating evidence; and
• is more probative of the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts.
• relates to a material fact

– The proponent must give timely (and detailed) notice of the intent to offer the statement.

Question 19

hearsay - R806 - attacking/supporting hearsay declarant’s credibility

Answer 19

– If a hearsay statement comes into evidence, the credibility of the declarant of the hearsay statement is put in issue and thus the declarant is subject to impeachment like any other witness and the foundation requirements for extrinsic evidence are waived.

– i.e. declarants of OOC statements can be impeached just like anybody else

Question 20

hearsay & crim pro - confrontation clause (general rule)

Answer 20

– The Supreme Court has held that a hearsay statement is inadmissible (as violating the Confrontation Clause) in a criminal case despite satisfying a hearsay exception if:

• 1. The statement is offered against the defendant;
• 2. The declarant is unavailable to testify;
• 3. The statement is “testimonial” in nature; and
• 4. The defendant had no opportunity to cross-examine the declarant about the statement prior to trial.

Question 21

hearsay & crim pro - confrontation clause (“testimonial”)

Answer 21

– A statement qualifies as “testimonial” if the “primary purpose” of the conversation was to “create an out-of-court substitute for trial testimony,” such as prior testimony at a preliminary hearing, grand jury, or former trial. In contrast, a statement is NOT testimonial if the primary purpose is to address an ONGOING emergency.

• The Supreme Court has found the following statements to be testimonial:
– 1. A statement made by a victim to the police shortly after a crime (when no emergency existed) where the purpose of the interrogation was to establish or prove the crime.
– 2. Affidavits, certificates, or reports summarizing the findings of a forensic analysis if offered for substantive purposes.

• The following statements are NOT testimonial:
– 1. A statement made by a victim to a 911 emergency operator.
– 2. A statement made by a child abuse victim to a teacher.
– 3. A declaration against penal interest made by an accomplice that is admissible under FRE 803(b)(3).

Question 22

authentication & identification - general rule

Answer 22

• Rule: Authentication and identification requires proof that the evidence is what it purports to be.
• reasonable juror standard: judge will send this issue to the jury if proof is introduced sufficient to support a finding that the fact does not exist

Question 23

authentication & identification - writings (by extrinsic evidence - 7)

Answer 23

• (1) By extrinsic evidence: There are several ways to authenticate a writing by extrinsic evidence:
• testimony of a witness who saw the party sign or prepare the document
• testimony of a fact witness sufficiently familiar with the handwriting (the familiarity CANNOT be gained for purposes of testifying)
• comparison by a handwriting expert (who may acquire familiarity solely for testifying) or the fact-finder (who obviously has no prior familiarity with the handwriting) – i.e. jury can compare for themselves
• testimony identifying distinctive characteristics of the document (e.g., letterhead)
• testimony establishing the “reply doctrine” (e.g., A mails a letter to B offering to buy widgets. In reply, A receives a letter purportedly from B accepting the offer to buy widgets. B’s letter may be authenticated under the reply doctrine)
• public documents (if retrieved from proper place of repository)

• ancient documents (i.e., those more than 20 years old found in a place where they should be found)
»> contrast with hearsay exception timeline of “before 1998”

Question 24

authentication & identification - writings (self-authentication)

Answer 24

• (2) Self-Authentication: certain types of documents (i.e., those normally reliable) may be admitted into evidence without extrinsic evidence. These include certified copies of domestic and foreign public records, newspapers, magazines, official government publications, product labels, negotiable instruments, notarized documents, and certified business records or data generated by an electronic process, system, or device.

Question 25

authentication & identification - writings (procedure)

Answer 25

• Procedure: The judge makes the initial determination of authenticity. The judge will admit a document into evidence if the proof is “sufficient to support a jury finding of genuineness.” The jury determines what weight to give it (i.e., the jury may determine it is a forgery).

Question 26

authentication & identification - voices (general, incoming calls, outgoing calls)

Answer 26

• general voice ID: a lay witness can hear a person’s voice in preparation for trial to show that they believe the voices match (unlike handwritings)

• Incoming Calls and Tape Recordings: person answering phone or listening to recording recognizes voice; voice may have been previously heard in person, by phone, or on tape and may have been heard before or after the call (and solely for purposes of testifying).
»> For authentication purposes, the witness does not have to be absolutely certain of the caller’s identity.

• Outgoing Calls: (a) the caller recognizes the voice on the other end (in the same manner as for incoming calls); (b) the caller locates the recipient’s telephone number in the directory and the person on the other end identifies himself; or (c) the caller locates the recipient’s telephone number in the directory and the conversation relates to the recipient’s business.

Question 27

authentication & identification - photos/videos

Answer 27

• Testimony from someone familiar with the scene or item portrayed in the photo/video that the photo/video is an accurate representation of the scene/item at that point in time; testimony of the photographer is unnecessary.

Question 28

authentication & identification - real evidence

Answer 28

• There are two ways to identify real evidence:

(1) by testimony as to identity (e.g., recognizing the serial number of a gun or a distinctive diamond ring); OR

(2) establishing a chain-of-custody (typically for non-unique items or items that are likely to be confused or can easily be tampered with)
»> **not necessary to negate ALL possibilities of tampering, just need to show proper adherence to some system of identification and custody

Question 29

authentication & identification - demonstrative & illustrative evidence

Answer 29

• Demonstrative evidence is not real evidence; it is a visual aid used to explain or illuminate real, documentary, or testimonial evidence.
»> Examples: charts, graphs, maps, spreadsheets, films, anatomical models.

• To use such evidence, the proponent must show that the demonstrative evidence is (1) a substantially accurate representation of real, documentary, or testimonial evidence, and (2) useful to the jury in understanding such evidence.
»> Generally, demonstrative evidence does not go to the jury deliberation room.

• A summary or chart may be used to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.

Question 30

authentication & identification - x-rays & surveillance cameras

Answer 30

• Testimony that the X-Ray equipment or camera is reliable and in good working order and that the process used is accurate. The same rule would apply to other equipment, such as a breathalyzer.

Question 31

authentication & identification - best evidence/original writing rule (what it is; when it applies; when secondary evidence is allowed; what counts as secondary evidence)

Answer 31

• The original writing rule requires that certain types of evidence be proved by an original “writing” (defined broadly to include contracts, wills, videos, x—rays, and any tangible collection of data).

The rule applies in only two situations:

> > > (1) the proponent is attempting to prove the contents of a document that evidences a written transaction (e.g., contracts, deeds, wills, judgments, divorce decrees); or

> > > (2) a witness intends to testify about an event in which his knowledge was acquired solely from reading a writing, listening to a recording, or viewing a video or photo (e.g., X testifies that A bought a car from B; X’s sole knowledge comes from reading the bill of sale).
» be careful: if W watches something live that was contemporaneously recorded, you need not introduce the recording as “best evidence” because W witnessed the event live (i.e. if they have first hand PK, you don’t need best evidence)

• when secondary evidence is allowed:
» if the rule requires an original and the proponent cannot produce one, other evidence (e.g., drafts, testimony, etc.) is admissible only if the proponent proves that:
»» the original was lost or destroyed (without bad faith),
»» the document is not obtainable by subpoena,
»» the document is in the other party’s possession,
»» the document relates to a collateral (i.e., minor) matter, or
»» the other party admits the contents of the document.

> > There are no “degrees” of secondary evidence under the FRE; once the proponent shows the original is unavailable, a witness’s testimony about the document is just as admissible as a prior draft.

> > Under the FRE, an original includes carbon copies and photocopies (unless there is a genuine question about authenticity). In addition, certified copies of public records are admissible as originals.
» **not handwritten copies

Question 32

hearsay - FRE 804 - what amounts to valid “unavailability of a witness” (5)?

Answer 32

– if the declarant is unavailable as a witness due to privilege, refusal to testify, lack of memory, death or infirmity, or lack of the witness’s attendance at trial due to no fault of the party seeking to use the testimony

• PRISM: Privilege; Refusal to testify; Incapacity; Subpoena; Memory

Question 33

authentication & identification - best evidence/original writing rule (part introduction of an item; exceptions; questions exclusively for the jury)

Answer 33

• If a party introduces only part of a writing or recording and other parts are necessary to put that part in the proper context, the opponent may force the offering party to introduce those other parts.

• Exceptions:
»> summaries of voluminous records;
• **SO LONG AS the original documents are available to the other party for examination and copying
»> certified copies of public records (b/c hard to get the original copy from the public office);
»> collateral writings
»> anything opponent says about the contents of the writing

• Inquiries reserved for the jury
»> whether the original ever existed
»> whether the item presented is or is not an original
»> whether the evidence offered correctly reflects the contents of the original

Question 34

FRE 106 – Fairness Exception

Answer 34

• FRE 106 – Fairness Exception
– if a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time – even if it is technically inadmissible hearsay