Evidence: Hearsay

Front 1

Hearsay

Back 1

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

Front 2

Four Hearsay Risks

Back 2

1. Misperception
2. Faulty Memory
3. Misstatement
4. Insincerity

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Rule 801(a). Statement

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1. Oral/Written Assertion; or
2. Nonverbal Conduct Intended to Communicate

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Three Evidentiary Safeguards

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1. Cross-Examination
2. Demeanor
3. Oath

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Rule 801(b). Declarant

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A person who made the statement.

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Two Levels of Hearsay Risks

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1. Witness Testimony - Statement actually made by the declarant.
2. Declarant's Statement - Statement made by the declarant and the statement was true.

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Rule 801(c). Hearsay

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A statement that (1) the declarant does not make while testifying and the current trial or hearing and (2) a party offers to prove the truth of the matter asserted.

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Hearsay Analysis

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1. Intended Assertion
2. Evidentiary Purpose
3. Truth of Matter Asserted

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Hearsay Analysis: Intended Assertion

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What did the declarant intend to assert?

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Hearsay Analysis: Evidentiary Purpose

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What does the proponent seek to prove with the statement?

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Hearsay Analysis: Truth of Matter Asserted

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Does the jury need to believe the truth of the statement to prove the proponent's point?

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Test for Statement

Back 12

Did the declarant intend to assert something?

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Prior Inconsistent Statements - Rule 801(d)(1)(A)

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will admit prior out of court statements if (1) the declarant testified at trial, (2) the declarant must be subject to cross-examination about the prior statement, (3) the statement must be inconsistent with the testimony given at trial, and (4) the prior inconsistent statement may only be used for

Front 14

Prior Consistent Statements - Rule 801(d)(1)(B)

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Statement must be offered to rebut an express or implied charge that the declarant recenty fabricated it or acted from a recent improper influence or motive.

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Individual Admissions – Rule 801(d)(2)(A)

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1. Statement must be offered against an opposing party; and

2. Must be the party’s own statement

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Prior Statements of Identification - Rule 801(d)(1)(C)

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allows prior out of court statements where (1) the declarant must testify at current trial, (2) declarant must be subject to cross-examination, and (3) the statement must identify the person as someone the declarant perceived earlier.

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Bruton Rule

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The confession of a co-defendant which is inadmissible against the defendant cannot be used if it implicates the defendant, at least if the co-defendant does not testify. Per se Constitutional Confrontation Clause bar against allowing the admission of a co-defendant and the party cannot testify.

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Adoptive Admissions – Rule 801(d)(2)(B)

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1. Statement must be offered against an opposing party; and

2. The party must have manifested that it adopted or believed the statement to be true.

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Tacit Admissions

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Silence serves to adopt another person’s statement where under all the circumstances.

E.g., In Hoosier, it would have been natural to deny the statement if it had been untrue.

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Authorized Admissions – Rule 801(d)(2)(C)

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1. The statement must be offered against an opposing party; and

2. The party must have authorized the declarant to make a statement

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Admissions by Employee/Agent – Rule 801(d)(2)(D)

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1. The statement must be offered against an opposing party;

2. Declarant must have been an employee or agent of the opposing party;

3. Statement must have been on a matter within the scope of that relationship; and

4. Statement made during while the relationship existed.

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Admissions by Employee/Agent: Statement Limits

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1. Statement does not establish the agency or employment by itself, but should be considered.

2. Statement does not establish the scope of the employment relationship, but should be considered

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Co-Conspirator Admission – Rule 801(d)(2)(E)

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1. Statement offered against an opposing party;

2. Made by a co-conspirator (statement does not establish the existence nor participation in a conspiracy);

3. During the conspiracy; and

4. In furtherance of the conspiracy.

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Bootstrap Rule - Bourjaily

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1. Judge determines whether the requirements of a hearsay exception/exemption applies

2. The determination of applicability is by a preponderance of the evidence

3. The statement may be used to show the existence of the conspiracy (bootstrap rule)

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Present Sense Impressions - 803(1)

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1. The statement must describe or explain an event or condition; and

2. The statement must have been made while or immediately after the declarant perceived the event or condition

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Present Sense Impressions - Application

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• The declarant must have personal knowledge

• “a statement describing or explaining an event or condition”

• This language has been interpreted to mean that the statement must give a verbal picture of the event

• It does not include statements that describe motivations or reasons

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Excited Utterances - 803(2)

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1. There must have been a startling event or condition;

2. The statement must relate to the startling event or condition; and

3. The statement must have been made while the declarant was under the stress of excitement that the event or condition caused

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State-of-Mind Exception - 803(3)

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1. Then-existing physical condition

2. Then-existing mental condition

3. the statement must not be offered to prove a fact remembered or believed

4. Anything that declarant says concerning the validity or terms of his will falls within 803(3)

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Defn: State of Mind

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The statement must be of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)

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State-of-Mind Exception - Application

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1. The exception only allows the statement as evidence of declarant’s state of mind.

2. the exception does not make factual assertions admissible for their truth

3. You must be able to show that the statement indicates something relevant about the declarant’s state of mind

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Hillmon Doctrine

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A person's current intent to do something is admissible to show that the intended act was done

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Compromise Position

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Statements describing what the speaker intends to do with another can be admitted to prove what both did if:
• There is corroborating evidence that brings the two together as anticipated by the statement; or

• The victim is dead or missing

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State-of-Mind Exception - Facts About Declarant’s Will

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Excepts virtually anything a person says about his own will

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Statements for Diagnosis or Treatment - Rule 803(4)

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1. The statement must be made for medical diagnosis or treatment;

2. Must be reasonably pertinent to diagnosis or treatment; and

3. Must describe medical history; past or present symptoms or sensations; their inception; or their general cause.

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Individual Admissions – Rule 801(d)(2)(A)

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1. Statement must be offered against an opposing party; and

2. Must be the party’s own statement

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Admissions by Employee/Agent – Rule 801(d)(2)(D)

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1. The statement must be offered against an opposing party;

2. Declarant must have been an employee or agent of the opposing party;

3. Statement must have been on a matter within the scope of that relationship; and

4. Statement made during while the relationship existed.

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Co-Conspirator Admission – Rule 801(d)(2)(E)

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1. Statement offered against an opposing party

2. Made by a co-conspirator (statement does not establish the existence nor participation in a conspiracy)

3. During the conspiracy; and

4. In furtherance of the conspiracy

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State of Mind Exception - 803(3)

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1. A statement of the declarant’s then-existing state of mind or physical condition

2. But not including a statement of memory or belief to prove the fact remembered or believed

3. Unless the fact or memory relates to the validity or terms of the declarant’s will.

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Statements for Diagnosis or Treatment - Rule 803(4)

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(A) Reasonably pertinent statement made for a medical diagnosis or treatement; and

(B) Describes medical history; past or present symptoms or sensations; their inception; or their general cause.

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Past Recollection Recorded - 803(5)

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(A) Record on a matter the witness once knew about, but now cannot recall well enough to testify fully and accurately;

(B) Record made or adopted by the witness when the matter was fresh in the witness’s memory;

(C) Record that accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

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Multiple Hearsay – 805(5)

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Each level of hearsay must qualify under an exemption or exception.

Isolate each hearsay statement and identify an exception for each individual statement.