Evidence - Hearsay

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Hearsay

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

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What is a statement

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1) an oral or written assertion, or 2) non-verbal conduct intended as an assertion. Only people can make statements.

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Reason for hearsay rule

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Adverse party was denied the opportunity to cross examine the declarant

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Out of court statement?

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Given out of court if given outside of THIS SPECIFIC TRIAL.

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Offered for proof of the matter asserted?

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Three step approach 1) find the statement 2) ask what it is offered to prove 3) given what its offered to prove will jury be misled if the out of court speaker was misled?

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Out of court statements not considered hearsay

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1) independent legal significance (words of contract, adverse possession or defamation). 2) Effect on the listener or reader (prove notice in negligence cases) 3) circumstantial evidence of declarant's state of mind.

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Examples of state of mind exemption

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Evidence of insanity or knowledge. NOT statements that reflect on a specific state of mind to establish intent.

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Hearsay Exemptions

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Admission of party opponent, Prior inconsistent statement given under oath at trial or depo, Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive 3) statement of identification of a person made after perceiving the person.

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Party admissions

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a statement made or act that amounts to a prior acknowledgement by one of the parties of one of the relevant facts. Statement need not be against interests, may be in form of opinion, personal knowledge is not required and may be predicated on hearsay.

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Judicial and Extrajudicial admissions

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Formal judicial admissions are conclusive. Informal judicial admissions made during testimony and extrajudicial (evidentiary) admissions are not conclusive and can be explained

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Adoptive admissions

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A party may make an admission by expressly or impliedly adopting or acquiecing in the statement of another.

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Adoption by silence

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If a reasonable person would have responded and a party remains silent in the face of accusatory statements, his silence may be considered an implied admission. Silence is treated as an admission only if: 1) the party heard and understood the statement; 2) the party was capable of denying 3) a reasonable person would have denied

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Vicarious Admissions

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Statement by 1) authorized spokesperson of a party or 2) employee of party concerning matter within scope of employment and made during employment relationship

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Vicarious Admissions: Who has authorization?

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Expressly authorized or anyone high up in the heirarchy are impliedly authorized

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Admissions: Co-Conspirators

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An admission mad during the course and in furtherance of the conspiracy are not hearsay

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Admissions: Partners

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After a partnership is shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners.

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Hearsay exceptions - Delarant Unavailable

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Former Testimony, Statements against interest, dying declarations, statements of personal or family history, statements offered against party procuring declarant's unavailability

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When is a declarant unavailable?

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1) exempt from testifying due to privilege 2) refuses to testify 3) lack of memory 4) death or physical or mental illness 5) absent

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Exception: Former Testimony

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Testimony given by a person in earlier proceeding or depo is admissible if the party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, or 2) in a civil case, the party agaisnt whom the testimony is now offered was not present in the earlier proceeding but has a close privity type relationship with soeone who was a party to that earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proceeding. Declarant must be unavailable

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Declaration against interest

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a statement against the financial interest of declarant or would have subjected declarant to criminal liability. If the statement is offered to exculpate accused, there must be corroborating evidence to admit the statement.

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Declaration against interest vs Party Admission

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Admission: Statement of a party. Declaration against interest: Can be made by anyone. Must be against interest when made.

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Dying Declaration

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In a homicide prosecution or a civil action, a statement made by an unavailable declarant if 1) declarant believed his death was imminent (need not actuall die) 2) the statement concerned the cause or circumstances of what he believed to be his impending death

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Statements of personal or family history

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Admissible to prove declarant is a member of the family in question provided that the declarant is a member of the family in question or intimately associated with it, and the statements are based on the declarant's personal knowledg of the facts of her knowledge of family reputation

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Statements offered against party procuring declarant's unavailability

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admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.

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Hearsay Exceptions - Declarant's availability immaterial

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Present State of mind, present sense impression, excited utterances, declaration of physical condition, business records, past recollection recorded, official records, vital statistics, absence of public record, judgments, ancient documents, documents affecting property interests, learned treatises, reputation, family records, market reports

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State of mind

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statement of then existing state of mind, emotion, sensation or physical conditon (usually introduced to establish intent)

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Excited utterances

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Statement made while under stress of excitement of startling event.

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Present Sense impression

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Statement made concurrently with perception of event described.

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Present Bodily Condition

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A spontaneous declaration of present bodily condition is admissible as an exception to the hearsay rule even though not made to a physician.

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Past bodily condition

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Admissible if to assist diagnosis or treatment. Includes declarations about the cause of source of the condition if pertinent to diagnosis

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Business Records Excepton

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Admissible if it is 1) a record of events, conditions, opinions or diagnoses 2) kept in course of regularly conducted business activity, 3) made at or near time of matters described 4) by person with knowledge of the facts in the record 5) it was regular practice of business to make such record.

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Business record authentication

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The authenticity of the record must be etablished. This can be accomplished by the custodian 1)testifying or 2) certifying in writing. Records made in anticipation of litigation are not business records.

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Public records exception

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Admissible if within one of the following categories: 1) record describes activities and policies of the office; 2) record describes matters observed pursuant to duty imposed by law (not police reports in criminal cases) 3) record contains factual findings resulting from investigation made pursuant to authority grated by law unless trustworthy. In criminal case, prosecution cannot use #3.

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Past recollection recorded

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If witness' memory cannot be revived, a party may introduce a memo that the witness made at or near the time of the event.

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Judgment of previous felony conviction

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Admissible in both civil and criminal cases to prove any fact essential to the judgment. When offered by prosecutor for purpose other than impeachment, judgments agains person other than the accused are inadmissible

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Confrontation Clause

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excludes an out of court statement if declarant does not testify at trial, in now unavailable, the statement is testimonial and Defendant had not chance to cross examine declarant about the statement when it was made.

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Confrontation Clause: Testimonial

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Unclear, but applies to statements made in court and statements made to further police investigation aimed at producing evidence for a prosecution. Statements to police to deal with an ongoing emergency are non-testimonial and their admission does not violate the CC.

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Ancient Documents

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20 years or more are admissible as are statements in any document affecting an interest in property.

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Learned Treatise

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Are admissible as substantial proof if 1) called to the attention of, or relied upon by, an expert witness, and 2) established as reliable as authority by the testimony of that witness, other expert testimony, or judicial notice.

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Catch all exception

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Judge may admit hearsay evidence if 1)the statement possesses circumstantial guarantees of trustworthiness, 2) the statement is strictly necessary and 3)notice be given to the adversary as to the nature of the statement.