Evidence - Hearsay

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Hearsay - Definition

Back 1

Out-of-court statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted.

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Statement - Definition
(Hearsay)

Back 2

Anything other than what is on the witness stand

Can be oral, written, or conduct intended as an assertion

Assertive conduct:
1. affirmative action intended to communicate (e.g., shaking head 'no')

Non-assertive Conduct
(1) Non-assertive conduct is non-hearsay.
(2) The following are some examples: (1) videotape showing a defendant’s demeanor; (2) defendant walking with a limp or an unsteady gait due to injury or intoxication; (3) defendant talking with slurred speech; (4) defendant hiding from police or fleeing the scene; and (5) defendant hiding evidence.

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Evidence Offered for Non-Hearsay Purposes

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Can offer hearsay if not intended to prove the truth of the matter asserted. For example:
1. effect on the listener
2. state of mind
3. verbal acts
4. condition of the speaker
5. nature of a place

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Admissions
Statements Which Are Not Hearsay
(Rule 801(d))

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1. direct
2. adoptive
3. admission by silence
4. authorized admission
5. employee/vicarious admission

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Direct Admission

Statements Which Are Not Hearsay
(Rule 801(d))

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A party's statement offered against him by an opponent.

(statement by party opponent)

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Adoptive Admission

Statements Which Are Not Hearsay
(Rule 801(d))

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Admission by silent acceptance of another person's statement

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Admission by Silence

Statements Which Are Not Hearsay
(Rule 801(d))

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Require that the party heard and understood the statement and that a reasonable person would have denied the statement.

Can be explicitly (“I agree with that”) or implicitly

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Authorized Admission

Statements Which Are Not Hearsay
(Rule 801(d))

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Statement by party's agent or representative

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Employee (Vicarious) Admission

Statements Which Are Not Hearsay
(Rule 801(d))

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A statement of a party’s employee offered against the party by the opponent; the statement:
(1) must be made during the existence of the relationship and
(2) must concern a matter within the scope of employment.

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Co-Conspirator's Statements

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Can be used whether or not a charged with conspiracy (or even aware that conspiracy exists)

Requirements for use:
1. for purpose of furthering conspiracy
2. declarant and party against whom it is offered were members of conspiracy at time statement was made
3. statement made during the conspiracy

Can use the statement itself, but must have some other evidence of the existence of the relationship

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Prior Statements
(Hearsay Exceptions)

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(1) the declarant must testify at the trial or hearing and (2) the declarant must be subject to cross-examination concerning the statement.

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Prior Inconsistent Statements
(FRE 801(d)(1)(A))

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Permitted to be offered as truth of the matter asserted if it was made under oath (a sworn procedure)

includes:
--statement made during grand jury
--statement made during coroner's inquest

not included:
--affidavit

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Prior Consistent Statements
(FRE 801(d)(1)(B))

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Permitted to be offered for its truth if offered to rebut a charge of recent fabrication or improper influence subject to the above-mentioned requirements (testify at trial and be cross-examined)

Look for pre-deal vs. post-deal statements
--if pre-deal, no abuse afoot

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Prior Identifications
(FRE 801(d)(1)(C))

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Prior statement of identification of a person made after perceiving him can be admissible, subject to requirements (testify at trial and be cross-examined)

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Present Sense Impression
(Rule 803(1))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

A statement made by the declarant describing or explaining an event or condition made while or immediately after perceiving it.

Has the following characteristics.
(1) spontaneous
(2) personal knowledge
(3) oral, written
(4) made while declarant is perceived event or right after
(5) subject matter restriction

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Excited Utterance
(Rule 803(2))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

A statement relating to a startling event made while the declarant was under the stress of excitement caused by the event or condition.

Has the following characteristics.
(1) personal knowledge is required
(2) person still under the spell of the event
(3) does not require spontaneity

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Statements of a Then-Existing Mental, Emotional, or Physical Condition
(Rule 803(3))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

Is admissible if relevant to show declarant’s state of mind.

Does not include statements of prior-existing conditions (e.g., i HAD a headache)

Does not generally include statements of memory or belief; however, statements of memory or belief made by a testator are admissible

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Statements for Purposes of Medical Diagnosis/Treatment
(Rule 803(4))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

Can be made to any medical personnel or other person for the purpose of transmitting the statement to medical personnel.

Statements must be useful for diagnosis and treatment.

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Past Recollection Recorded
(Rule 803(5))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

May be used where the witness has a present memory problem—the witness must lack sufficient current memory of the event to testify fully and accurately.

To introduce, the following requirements must be met:
(1) memorandum was made or adopted by witness (witness took pains to be accurate when making memorandum)
(2) made when the memory was fresh in the witness’ memory
(3) reflects the knowledge correctly (accurate)

Can read to jury but not admit into evidence

The adverse party has the right to (1) inspect the recorded past recollection; (2) use it in cross-examination; (3) show it to the jury for comparison; and (4) introduce relevant portions into evidence.

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Business Records
(FRE 803(6))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

Applies to:
1. any memorandum, record, report of acts or events
2. made at or near the time
3. by a person with knowledge,
4. if kept in the course of a regularly conducted business activity, and
5. if it was the regular practice of that business to make such a record or report (as shown by the testimony of the custodian or other qualified witness, provided the information does not lack trustworthiness)

--not for preparing for lawsuit

Examples:
police accident reports, sales receipts, hospital records, and payroll records

Authentication of the business records can be made by either the custodian of the records or other qualified witness or by affidavit or stipulation.

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Absence of Entry in Records
(FRE 803(7) and (10))

(Hearsay Exceptions)

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Evidence that a matter is not included in records or data compilations kept in accordance with the business or public records may be admitted to prove the non-occurrence of the event or the non-existence of the matter.

Foundation: the witness must testify that he
(1) is familiar with the records,
(2) diligently searched the records, and
(3) found no record of the event.

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Public Records and Reports
(FRE 803(8))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

Similar foundation as business records but need not show it was routinely made at or near the time:
1. any memorandum, record, report of acts or events
2. by a person with knowledge,
3. if kept in the course of a regular public records, and
5. if it was the regular practice of that entity to make such a record or report

Includes: records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
(1) the activities of a public office or agency or
(2) matters observed pursuant to duty imposed by law as to which there was a duty to report.

Criminal: does not include matters observed by police officers and other law enforcement personnel

Civil: factual findings from official investigations pursuant to authority granted by law are generally deemed to be trustworthy but inadmissible if way prepared shows lack of trustworthiness

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Records of Vital Statistics
(FRE 803(9))

(Hearsay Exceptions)

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Records or data compilations of births, deaths or marriages are admissible if the report was made to a public office pursuant to requirements of law

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Records of Religious Organizations
(FRE 803(11))

(Hearsay Exceptions)

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Generally admissible

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Marriage, Baptismal, and Similar Certificates
(FRE 803(12))

(Hearsay Exceptions)

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Generally admissible

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Family Records
(FRE 803(13))

(Hearsay Exceptions)

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Not excluded by the hearsay rule, even if the declarant is available as a witness.

Statements of fact concerning personal or family history

Contained in such things as family bibles, genealogy charts, inscriptions on family portraits, engravings on tombstones, and urns.

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Records of Documents Affecting an Interest in Property
(FRE 803(14))

(Hearsay Exceptions)

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Generally admissible

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Statements in Ancient Documents
(FRE 803(16))

(Hearsay Exceptions)

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Includes statements in a document in existence 20 years or more whose authenticity is established.

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Market Reports, Commercial Publications
(FRE 803(17))

(Hearsay Exceptions)

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This category includes statements of objective facts but not opinions.

Examples include such things as telephone directories, credit reports, retail sales catalogs, Kelly Blue Books, the Yellow Pages, and the Wall St. Journal.

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Learned Treatises
(FRE 803(18))

(Hearsay Exceptions)

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The “Expert Exception” includes statements made in treatises, textbooks, journals, and periodicals

A foundation for the “learned treatises” authoritativeness must be established by:
(1) judicial notice,
(2) expert testimony, or
(3) stipulation.

Subject areas include medicine, art, science, and history.

Cannot offer treatise itself, only read from it

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Reputation Among Associates, Family Members Concerning Persona Family History
(FRE 803(19))

(Hearsay Exceptions)

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Generally admissible

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Reputation Concerning Boundaries or General History
(FRE 803(20))

(Hearsay Exceptions)

Back 32

Generally admissible

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Reputation as to Character
(FRE 803(21))

(Hearsay Exceptions)

Back 33

Generally admissible

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Judgment of Previous Conviction
(FRE 803(22))

(Hearsay Exceptions)

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Final judgments of previous convictions for felonies are admissible.

The judgment may be used to prove any fact that was essential to the judgment (To prove elements of the crime took place)

Civil case: Judgment may be used by any party for any purpose.

Criminal case: If offered by prosecution for purpose other than impeachment, judgment must have been against the defendant.

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Judgment as to Personal, Family, or General History, or Boundaries

(Hearsay Exceptions)

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Final judgments, if essential to a particular case, are admissible.

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Declarant Unavailable
(FRE 804)

(Hearsay Exceptions)

Back 36

PRISM
P: privilege

R: refusal

I: incapability ( due to death or then-existing physical or mental illness)

S: subpoena (if absent despite a good-faith attempt to procure a witness’s attendance)

M: memory (lack of)

Front 37

Former Testimony
(FRE 804(b)(1))

(Hearsay Exceptions)

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If unavailable, former testimony is admissible if
following requirements are met.
(1) previously made statements
(2) under oath
(3) similar motive and opportunity to cross-examine

A deposition of a witness taken in a civil case may be admissible in a criminal case arising out of the earlier civil case.

Testimony against the accused from a preliminary hearing may be admitted as former testimony at trial if plaintiff witness is unavailable because opportunity and similar motive tests are usually satisfied.

Grand Jury testimony is not admissible.

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Statements Under Belief of Impending Death
(FRE 804(b)(2))

(Hearsay Exceptions)

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With respect to “dying declarations”, the judge determines whether declarant subjectively believed death was imminent.

Death need not actually result.

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Statements Against Interest
(FRE 804(b)(3))

(Hearsay Exceptions)

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Typically, these are not statements by a party but by other persons.

Not excluded by the hearsay rule if three requirements are met:
(1) the declarant is unavailable,
(2) the declarant is a non-party, and
(3) the statement was against the declarant’s interest when made.

Criminal: must corroborate with statements that shift responsibility to defendant.

Front 40

Statement of Personal or Family History
(FRE 804(b)(4))

(Hearsay Exceptions)

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The “Pedigree Exception”

Refers to statements concerning the declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.

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Forfeiture by Wrongdoing
(FRE 804(b)(5))

(Hearsay Exceptions)

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A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the Hearsay Rule).

e.g., "offing" the witness

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Confrontation Clause

(Hearsay Exceptions)

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--only in criminal cases
--only regarding testimonial statements
--only regarding evidence against the defendant

Inadmissible unless the defendant is given an opportunity to cross-examine the declarant.

Testimonial evidence includes such things as (1) public records used against defendant; (2) a statement during police interrogation, and (3) collecting information from an informant.

“Non-testimonial evidence” includes situations where the primary purpose of the statement is to aid police during an ongoing emergency.

Remedy: defendant must have opportunity to cross declarant, absent forfeiture

Documents can be admissible if prepared for court.

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Hearsay within Hearsay (aka, “Multiple Hearsay”)
(FRE 805)

(Hearsay Exceptions)

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When faced with two (or more) out-of-court statements, both the primary statement and the included statement must have a separate basis for admissibility.
-->Otherwise, the entire statement is inadmissible.

Must have hearsay exception for both declarants (or if offering for another reason then ok)

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Attacking and Supporting Credibility of Declarant
(FRE 806)

(Hearsay Exceptions)

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Impeachment of a hearsay (out-of-court) declarant is accomplished in the same way a declarant on the stand is impeached.

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Residual Exception
(FRE 807)

(Hearsay Exceptions)

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"catch-all

A statement not otherwise covered by an exception to the hearsay rule is nevertheless not excluded by the hearsay rule under certain circumstances:
(1) statement must be more probative on point than any other evidence;
(2) the party must give notice to the opposing party;
(3) the statement must concern a material issue; and
(4) the judge must ultimately determine whether, in the interest of justice, the statement should be admitted.