Evidence-Hearsay

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Hearsay-Definition

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Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception or exclusion applies

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Statement

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An oral or written assertion
Assertive conduct

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Assertive conduct

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Conduct intended by the actor to be a substitute for words.

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Absence of complaints can usually be admitted without hearsay problems.

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Nonassertive conduct

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Conduct the declarant did not intend as an assertion but which is being offered as assertion.

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Not hearsay

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Verbal acts or legally operative facts
Effect on hearer or reader
Declarant's state of mind (as circumstantial evidence)

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Legally operative facts

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Certain words to which the substantive law attaches legal significance simply because they were spoken

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Statement offered to show effect on hearer or reader

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Admissible for the limited purpose of showing:
KNOWLEDGE or NOTICE
MOTIVE or INTENT
BELIEF (a bill of sale describing the painting as a Picasso)

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Having certain emotion, behaving reasonably or unreasonably

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Statement offered as circumstantial evidence of D's relevant state of mind

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Admissible for the limited purpose of showing:
KNOWLEDGE
BELIEF (Insanity)

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Knowledge: D says to X, "I need to get my brakes checked because they haven't been working well."

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Statement offered as circumstantial evidence of D's state of mind-Compare with state of mind exception

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State of mind exception
Statements that reflect directly rather than circumstantially on D's state of mind are hearsay but admissible under an exception to the hearsay rule

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Nonhearsay under Federal Rules

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Prior statement by witness
Admission by party

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Prior statement by witness

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Prior inconsistent statement
Prior consistent statement
Prior out-of-court identification

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Prior inconsistent statement

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If made under oath at a prior proceeding or deposition (including grant jury testimony)

Admissible for both impeachment and substantive evidence

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No requirement for cross-examination or opportunity for cross-examination

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Prior consistent statement

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If offered to rebut a charge of recent fabrication or improper influence den or motive

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Regardless of whether made under oath.

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Admission of a party-opponent

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A statement amounting to a prior acknowledgment by a party of a relevant fact.

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Unlike a declaration against interest, an admission need not be against the D's interest at the time it is made.

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Admission by a party-opponent: Tips

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No personal knowledge required
No need to be against interest when made
Opinion allowed.
Conclusion of law allowed

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An admission may be predicated on hearsay

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Adoptive admission-silence

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For silence to be an admission, the three requirement must be met:
1. The party must have HEARD and UNDERSTOOD the statement;
2. The party must have been physically and mentally capable of denying the statement, and
3. A reasonable person would have denied the accusation under the same circumstances.

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A person's silence in the face of an accusation against him usually will be held to be intended as an assertion.
Failure to reply to an accusation or statement made by the police in a criminal case can almost never be used an an implied admission of a criminal act.

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Vicarious admission-Principal agent

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Principal-Agent:
Timing: The statement was made at a time when the employment relationship existed.
Scope: The statement concerns a matter within the scope of the employment relationship.

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Authority: Under FRE, authority is not required as long as the matter is within the scope of employment.

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Vicarious admission-Co-conspirators

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The statement was made during the course of the conspiracy and in furtherance of the conspiracy.

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Admission-combination with policy-concerns

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Factual admission made while offering to pay medical bills are admissible
Factual admission made in the course of settlement negotiation are inadmissible

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Distinction between Admission (A) and Declaration against interest (DAI)

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1. Against interest:
DAI (Yes)
A (Y/N)
2. Offered by D
DAI (Y/N)
A (N)
3. Unavailability
DAI (Y)
A (Y/N)

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Combination of admission with prior inconsistent statement

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Prior inconsistent statement for impeachment
The same statement for substantive purposes

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Exeception-Unavailability

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Dying declaration
Former testimony
Statement against interest
Statement of personal or family history
Statement against party procurring Declarant's unavailability

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Unavailability

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Privilege
Refuse to testify
Lack of memory
Death or illness
Absent or inability to procure his attendence by reasonable means

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**Dying declaration

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**In a homicide or a civil action, a statement made by a now unavaialble declarant while he believed death was imninent, concerning the cause or the circumstances of the imminent death

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**Former testimony

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**Statement made under oath at same or other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony

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Former testimony-Tips

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1. Grand jury testimony
2. The party against whom the testimony is offered:
including the party's predecessor in interest in a civil case
3. Same subject matter (causes of action need not be identical)

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**Statement against interests

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**The statement against declarant's pecuniary, proprietary, or penal interest when made

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Statement against interests-requirements

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Personal knowledge
Awareness of the stateme was bad

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Statement against interest-Corroboration

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Risk of criminal liability
If the statement is offered to exculpate accused, there must be corroborating evidence to admit the statement

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**Statement of personal or family history

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**Statemet of personal or family history made by family member or one itimately associated with the famly

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Personal knowledge required

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**Statement offered against party procurring declarant's unavailability

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Statement of unavailable declarant offered against the party who intentionally procured declarant's unavailability

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**State of mind

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Statement of then-existing state of mind, emotion, sensation, or physical condition

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Watch for MEMORY or BELIEF, inadmissible for prove the truth of the fact remembered or believed

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**State of mind-intent

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Admissible to establish the declarant's intent when the state of mind is a material issue or as circumstantial evidence that the intent was carried out.

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**Exited utterance

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Statement made while under stress of excitement of startling event

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Before the declarant had tie to reflect upon it

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**Present sense impression

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Statement made concurrently with perception of event described

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**Medical diagnosis or treatment

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Statement made to medical personnel for the purpose of diagnosis or treatment

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Past bodily condition-Tips

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1. Including cause or source of the condition if pertinent to diagnosis or treatment
2. Including those made to a doctor employed to testify

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**Past recollection recorded

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Writing by witness who cannot now remember the facts, made while the facts were fresh in hier mind

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The writing itself is inadmissible, it must be read to the jury

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**Business Records

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Writing made in the regular course of business, consisting matters within the personal knowledge of one with a business duty to transmit. Lack of such writing may be used to show nonoccurrence of event.

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The business was customary to made the type of entry involved
The entry must be made at or near the time of transaction

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Business record-Authentication

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By the custodian:
1. Testify that the record is a business record
2. Certifying in writing that the record is a business record.

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Public records and report

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Records and reports of public agencies regarding their activities, and records of births, deaths, marriage, etc. Absence of public record is admissible to show nonexistence of matter.

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The writing must made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.

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Public records-tips

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The public records and reports generally are not admissible against D in a criminal case

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Prior criminal aquittal-excluded
Judgment in former civil case-excluded

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Judgments

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A copy of a judgment of a prior felony convinction is admissible to prove any fact essentail to the judgment.
In a criminal case, it may be used for this purpose only against the accused.
It may be used only for impeachment purposes against others.

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Ancient documents

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Statements in any authenticated documents 20 years old or more

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Public records and report

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Records and reports of public agencies regarding their activities, and records of births, deaths, marriage, etc. Absence of public record is admissible to show nonexistence of matter.

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The writing must made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.

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Documents affecting property interests

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Statement in a document affect an interest in a property (e.g., deed or will) admissilbe regardless of its age

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Documents affecting property interests

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Statement in a document affect an interest in a property (e.g., deed or will) admissilbe regardless of its age

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Learned treaties

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Statements from authorative works admitted if called to attention of expert witness and established as reliable authority

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Few more

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Reputation
Family records
Market reports

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Constitutional issues

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Comfrontation clause