Evidence: Hearsay

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Hearsay is

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an assertion, made by a person other than that who is testifying (out-of-court declarant), offered to prove the truth of the matter asserted

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4 basic reasons we do not like hearsay

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(1) Transmission error - Telephone game - people get mixed up

(2) Inability to observe the demeanor of speaker - Speaker could have said in serious tone, or a joking tone

(3) Speaker is not under oath!!

(4) Speaker of an out-of-court stmt (OCS) may not be cross-examined MOST IMPORTANT REASON FOR DISAPPROVING OF HEARSAY Reliability of hearsay cannot be tested at the most appropriate time

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An assertion can be

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Oral, written, or nonverbal

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Full definition of hearsay plz

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Anassertion, made by a person other than that who is testifying (out-of-courtdeclarant), offered to prove the truth of the matter asserted

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What is important to remember about hearsay analysis?

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Hearsay turns on the reason why evidence is being offered

- what is the person trying to prove by offering the statement? What value does it add to the case?

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Why are we concerned with hearsay anyway

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4 basic reasons we do not like hearsay

(1) Transmission error - Telephone game - people get mixed up

(2) Inability to observe the demeanor of speaker - Speaker could have said in serious tone, or a joking tone

(3) Speaker is not under oath!!

(4) Speaker of an out-of-court stmt (OCS) may not be cross - examined MOST IMPORTANT REASON FOR DISAPPROVING OF HEARSAY Reliability of hearsay cannot be tested at the most appropriate time

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**HOW TO APPROACH AN OUT OF COURT STATEMENT**

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1) Does the OCS meet the definition of hearsay?

2) Does the OCS fall within an exemption?

3) Does the OCS fall within an exception?

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What qualifies as an "assertion" ?

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If the stmt is asking a question, exclaiming, or ordering a person to do something only—you DO NOT have an assertion, therefore, not hearsay

Look for declaratory sentences asserting a fact, communicating a fact to another

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What qualifies as an "out of court" declarant"?

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Madeby a person who is not testifying

Cannot be an animal or machine - Machines get tricky when it is a person operating the machine Conduct of mechanical devices is not a “stmt” for purposes of the hearsay rule

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police dogs or parrots who say actual words

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those are completely admissible hearsay!

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what is a better way to think about "offered to prove the matter asserted in the statement" ?

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offeredto prove to facts contained in the out of court statement

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Usesfor Hearsay

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Substantive Use: Statement used to prove the heart of the case

Non-substantive Use: Statement often used for impeachment

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NON HEARSAY (looks like hearsay, but isnt)

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"Words of Independent Legal Significance” or “Verbal Acts”

WordsBeing Offered to Show Their Effect on Listener Rather Than Prove Truth ofMatter Asserted

WhereWords/Conduct Constitute Circumstantial Evidence of Declarant’s State of Mind

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"Words of Independent Legal Significance” or “Verbal Acts”

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P’s Witness: “I called D and he said, ‘I accept you bid of $3K’”

This is an assertion of D’s acceptance of bid

This is out of court statement

Hearsay Purpose: Statement offered to prove D accepted bid

Nonhearsay Purpose: Statement has legal meaning for which it is offered -- formation of a K (offered for independent legal significance)

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Words Being Offered to Show Their Effect on Listener Rather Than Prove Truth of Matter Asserted

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>>D’s Witness: “Victim was holding a gun and said to D, ‘I’m going to shoot you.’”

This is an assertion and an out of court statement

Holding a gun is not an assertion; the assertion is “I’m going to shoot you” D is not offering statement to prove that victim was going to shoot D

D is offering statement to prove that victim had a gun so D fired back in self-defense

This is the listener’s statement of mind -- nonhearsay purpose

>>Police Officer: “Wife of D said, ‘He slugged me.’”

This is an assertion and an out of court statement

P offering statement to show listener’s state of mind --- that police officer had probable cause to arrest D for assault

"the cop just told me Bob said he's still alive"

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WhereWords/Conduct Constitute Circumstantial Evidence of Declarant’s State of Mind

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“Look at watermelons on that one” -- shows sexist/discriminatory intent of declarant, not that the secretary had big breasts

“I have a ship planted in my brain” -- shows declarant mentally ill, not that they have a ship in their brain

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If OCS (out of court statement) has analternate purpose...

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...then it is getting in -- But, it canonly be used for that alternate purpose!

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HEARSAY EXEMPTIONS

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1) Attending witness exemptions (3 kinds)

2) Admissions by party opponent (5 kinds)

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Attending witness exemptions (3 kinds)

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Prior inconsistent statement

Prior consistent statement

Prior identification

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Prior inconsistent statement

(attending witness)

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• Declarant is testifying and available for cross
  
• OCS was made under oath subject to penalty of perjury in a trial, hearing, or other proceeding or deposition
  
• OCS inconsistent with current testimony
  

**depositions dont count!!**

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Prior consistent statement

(attending witness)

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• Declarant testifying and available for cross
• Out-of-court statement consistent with testimony
• Offered to rebut express or implied charge of recent fabrication or improper influence or motive
• Failure of memory would not be a reason to use this exemption---however, you could do recollection of memory
• MUST meet the Tome gloss. The Tome requirement that the statement was made pre-motive
  

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Prior identification

(attending witness)

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• Declarant testifying and available for cross
• Statement one of prior identification of a person after person has been perceived - Cannot use this rule to identify a car, weapon, etc. & Person must have been perceived by declarant
• No right to counsel violation - Were proper procedures used in notifying counsel
• You can have a police officer describing an out-of-court ID by someone else, but the declarant still has to be in court and testifying - Cop says victim identified defendant as the guilty party. But, victim must be present
  

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Admissions by party opponent (5 kinds)

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• Personal admission
  
• Adoptive admission
  
• Vicarious authorized speaker admission
  
• Vicarious agent-servant admission
  
• Co-conspirator admission
  

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Personal admission

(Admissions by party opponent)

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• When one of the parties is a natural person and they said something out of court, it can be used in court
• Best example is statements by a criminal defendant -- D’s statement is admissible even if hearsay
• Criminal victims are not considered a party opponent and, thus, their out of court statements cannot be admitted and is hearsay. The State is the party-opponent in a criminal case
• Personal admissions can come in without any proof that the person speaking has personal knowledge of the facts in the statement because you can disclaim personal knowledge on cross, and it encourages people to settle cases
  

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Adoptive admission

(Admissions by party opponent)

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There are 2 kinds of adoptive admissions:

• Affirmative adoptive admissions - There are 2 statements going on - Occurs whenever a statement is approved of, by word or action, by the party opponent. Classic example is when one person says a statement, and the party opponent says something like “Absolutely”, or nods in the affirmative
• Negative (Tacit) admissions - You can negatively adopt a person’s statement if a reasonable person would speak up and deny the facts in that statement under those circumstances. It can be taken as a tacit admission as something is true. As to criminal Ds, no conduct/statement after Miranda has been read can be treated as tacit admission, but anything before Miranda can be treated as tacit admission
  

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Vicarious authorized speaker admission

(Admissions by party opponent)

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• Someone authorized by Party-Opponent to speak (i.e., Officers of Corporations; Public Relations)
• Not limited to employment relationship
• The declarant cannot establish their authority by simply stating "I am authorized to tell you…"
• Offered against the party-opponent
  

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Vicarious agent-servant admission

(Admissions by party opponent)

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• Generally involves employment relationship
• Must show the fact of agency or employment
• Have to speaking on something within the scope of their agency or employment
• Made during existence of the agency or employment (disgruntled employees may make false statements)
• Offered against the party-opponent
  

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Co-conspirator admission

(Admissions by party opponent)

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• Must show the fact of conspiracy
• Statement by co-conspirator of party-opponent
• In furtherance of the conspiracy
• Made during the course of the conspiracy
• Offered against party-opponent
  

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Recap of hearsay exemptions

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• Attending witness exemptions - declarant is testifying and available for cross
  

• Admission of party opponent - using someone's words to use against them
  

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Hearsay Exceptions Under FRE 803 -

excited utterance

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A statement relating to a startling eventor condition made while the declarant was under the stress of excitementcaused by the event or condition

(reliable because no time to think and some say people perceive better under stress -- heightened awareness - spontaneity so no time to fabricate)

Notes: The testimony must establish that declarant was acting under the stress of the excitement. Can be up to several hours later if the testimony establishing the statement is clear they were still excited then - available much longer after the event

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Hearsay Exceptions Under FRE 803 -

present sense impression

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Astatement describing or explaining anevent or condition made while the declarant was perceiving the event orcondition, or immediately thereafter.

Don’t have to have excitement but must have more immediacy in time

Likely, 5 minutes later will be too long to qualify

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Hearsay Exceptions Under FRE 803 -

existing mental, emotional, or physical condition

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Astatement of the declarant’s then existing state of mind, emotion, sensation,or physical condition (such as intent, plan, motive, design, mental feeling,pain, and bodily health), but not including a statement of memory or belief toprove the fact remembered or believed unless it relates to the execution,revocation, identification, or terms of declarant’s will.

Allows statement related to present state of body (“I have a toothache”) and mind (“I am depressed”)

***Does not include past tense states of body or mind (“I had a toothache yesterday”) -- this was not be admissible under FRE 803****

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Hearsay Exceptions Under FRE 803 -

Statements for purposes of medical diagnosis or treatment

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Statementsmade for purposes of medical diagnosis or treatment and describing medicalhistory, or past or present symptoms, pain, or sensations, or the inception orgeneral character of the cause or external source thereof insofar as reasonablypertinent to diagnosis or treatment

• If in present tense, the medical condition can come in under this rule or present state of body or mind
• This rule also allows in past physical conditions -- can be made statements made to nurse, ambulance driver, caregiver
• Does not be said to doctor if you can show that the speaker knew, at the time of the statement, that it was going to be used for purposes of medical diagnosis or treatment
• Diagnosis encompasses an expert diagnosis (medical or mental expert)P))
  

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Hearsay Exceptions Under FRE 803 -

Recorded Recollection

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A matter about which a witness once hadknowledge but now has insufficient recollection to enable the witness totestify fully and accurately, shown to have been made or adopted by the witnesswhen the matter was fresh in the witness’ memory and to reflect that knowledgecorrectly.

If admitted, the memorandum or record may be read into evidence butmay not itself be received as an exhibit unless offered by an adverse party

DECLARANT MUST BE PRESENT!!

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Hearsay Exceptions Under FRE 803 -

Public Records and Reports

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Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth

(A) the activities of the office or agency, or

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other LE personnel, or

(C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness

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Hearsay Exceptions Under FRE 803 -

Learned Treatises

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The FRE writers have generally favored the admissibility of learned treatises

A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.If admitted, the statement may be read into evidence but not received as an exhibit.

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Past recollection refreshed

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Any document that can refresh the witness can be shown to a witness to refresh him or her, but they cant read from it

It bites into their credibility a bit

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Hearsay Exceptions Under FRE 803 - Declarant Unavailable (a)

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Declarant MUST be unavailable!!!!!

1. EXEMPTION - Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
2. REFUSAL - Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
3. MEMORY LAPSE - Testifies to a lack of memory of the subject matter of the declarant’s statement; or
4. ILLNESS - Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
5. ABSENT - Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means
   

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Hearsay Exceptions Under FRE 803 - Declarant Unavailable (b)

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

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1. FORMER TESTIMONY - Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony be direct, cross, or redirect examination - parallel to collateral estoppel. Does the party against whom the statement is offered have the same opportunity to develop the testimony??? >>>>>> Mark Furman (OJ's cop) is unavailable to testify in a civil case after criminal acquittal, the Brown's want to use his testimony in the civil case against OJ, did OJ have the opportunity to cross examine in the first case and have the same or equivalent motive to testify in the first case? Yes - his liberty was at stake in the first case
2. DYING DECLARATION - Statement under belief of impending death: In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause of circumstances of what the declarant believed to be impending death - homicide and civil cases only bc it is limited to the cause or circumstances of the person's death
3. STATEMENT AGAINST INTEREST - A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement
   

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Texas has “Rule of Optional Completeness”

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Appliesto oral testimony.

You stand up and lodge the objection, but you don’t get toaddress it until it is your turn to examine the witness

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FRE Rule of Completeness

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Whena writing or recorded statement or part thereof is introduced by a party, anadverse party may require the introduction at that time of any other part orany other writing or recorded statement which ought in fairness to beconsidered contemporaneously with it

Not limited to hearsay Limited to writing or recorded statement

Does not pertain to oral statements

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807 - Residual Exception

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Hearsay is admissible under a residual or catchall exception to the hearsay rule.

It recognizes the admissibility to trustworthy statements that are “not specifically covered by” other exceptions.