Evidence Hearsay Foundational Elements

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

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Foundational Elements

1. The out-of-court declarant is testifying at the trial or hearing and is subject to cross-examination regarding the out-of-court statement.

2. The statement is inconsistent with the declarant’s trial testimony.

3. The statement was “made under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.”

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

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Foundational Elements

1. The out-of-court declarant is testifying at the trial or hearing and is subject to cross-examination regarding the out-of-court statement.

2. The statement is offered to rebut a charge that the declarant has recently made up a lie or been subject to improper influence.

3. The out –of-court statement was made before the event that arguably triggered the lie.

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Statement of Identification of a Person: Rule 801(d)(1)(C)

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Foundational Elements

1. The out-of-court declarant is testifying at the trial or hearing and is subject to cross-examination regarding the out-of-court statement.

2. The statement is one identifying a person and was made after perceiving the person in question.

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A Party’s own Statement: 801 (d) (2) (A)

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Foundational Elements

1. The out-of-court statement is a party’s own statement-an out-of-court statement by a party to the litigation at hand.

2. The statement is offered against the party who made it.

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A Statement by an Agent: 801(d) (2)(D)

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Foundational Elements

1. At the time the out-of-court statement was made, the declarant must have been an agent or employee of the party against whom the statement is now offered.

2. The out-of-court statement must concern something that was within the scope of the declarant’s agency or employment. (The focus here is on the subject of the statement and its relationship to the out-of-court declarant’s job, not on the out-of-court declarant’s authority to speak for company.)

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Statement by Person Authorized to Speak: 801(d)(2)(C)

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Foundational Elements

1. The out-of-court statement must be offered against a party.

2. The out-of-court statement must have been made “by a person authorized by the party to make a statement concerning the subject”

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Adoptive Admission: 80l(d) (2)(B)
Foundational Elements- Two Kinds of Adoptive Admissions

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There are two kinds of adoptive admissions: (1) those where a party explicitly adopts the statement of another; and (2) those where a party implicitly adopts the statement of another. The foundational elements are different for each.

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Foundational Elements – Explicit Adoptive Admission

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Foundational Elements – Explicit Adoptive Admission

Here are the foundational elements of an explicit adoptive admission, one where a party explicitly and unambiguously adopts a statement made by another:

1. The out-of-court statement is offered against a party.

2. The party against whom the statement is offered has explicitly adopted the statement as true, that is, has in some way affirmatively acknowledged the truth of the statement.

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Foundational Elements – Implicit Adoptive Admission

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Foundational Elements – Implicit Adoptive Admission

Here are the foundational elements of an implicit adoptive admission, commonly one where a person is silent in the face of a statement and that silence can be taken to be agreement with or adoption of the statement:

1) The out-of-court statement is offered against a party.

2) The party against whom the statement is offered heard the statement or read it. You cannot be held to have adopted a statement unless you can be held to have heard it or read it.

3) Probable human behavior would be to deny the statement if it was not true.

4) The party did not deny the statement.

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Admission by a Co-conspirator: 801(d)(2)(E)

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Foundational Elements

1. The out-of-court statement is offered against a party.

2. A conspiracy existed.

3. The declarant and the party against whom the evidence is offered were both members of the conspiracy.

4. The statement was made during the course of the conspiracy.

5. The statement was made in furtherance of the conspiracy.

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Present Sense Impression: Rule 803(1)

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Foundational Elements

1. The out-of-court statement must have been made while the declarant was perceiving an event or a condition, or immediately thereafter.

2. The out-of-court statement must describe or explain the thing being perceived.

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Excited Utterance: Rule 803(2)

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Foundational Elements .

1. There was a sufficiently startling event.

2. The out-of-court declarant was sufficiently startled by this event-startied into a mental state where reflection and reasoning are blocked.

3. The out-of-court statement was made while the declarant remained under the stress of the excitement caused by the event-made while declarant’s reflection and reasoning continued to be blocked by the effect of the triggering event.

4. The out-of-court statement must relate to the startling event.

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State of Mind or Statement of Then-Existing Mental, Emotional, or Physical Condition: Rule 803(3)

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Foundational Elements

1. The out-of-court statement must be a statement of the declarant’s own
a. state of mind,
b. emotion,
c. sensation, or
d. physical condition.

2. The statement must reflect a state of mind, emotion, sensation, or physical condition existing at the time the statement is made.

3. Forward and Backward Looking Statements:

a. Forward Looking: When it is used as evidence of future conduct, the statement is admissible only as evidence of the declarant’s future conduct, not as evidence of the future conduct of another.

b. Backward Looking: Rule 803(3) itself states that but for one particular kind of backward looking statement this hearsay exception does not “include statements of memory or belief to prove the fact remembered or believed” The one kind of backward looking statement allowed by the terms of this exception is a statement of the out-of-court declarant’s own state of mind, emotion, sensation, or physical condition, which “relates to the execution, revocation, identification, or terms of declarant’s will”

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

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Foundational Elements

1. The declarant believed that the out-of-court statement would result in medical diagnosis or treatment. This element inquires into the declarant's mind.

2. A doctor would reasonably rely upon the out-of-court statement in diagnosing or treating a patient. This element inquires into a reasonable doctor's mind.

Keep in mind that this is a Rule 803 exception. This means that the availability of the declarant's in-court testimony is of no consequence.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
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(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

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Recorded Recollection: Rule 803(5)

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Foundational Elements

1. The out-of-court statement must be recorded somewhere, in some way. It can be written down, typed up, recorded on tape, entered onto a harddrive, painted on the side of a barn, or impressed in someone else's memory.

2. The statement must have been made or adopted by the testifying witness.

3. At the time the testifying witness made or adopted the statement, she must have had knowledge of the matter recorded and that knowledge must have been fresh in her memory.

4. At the time of the trial, the testifying witness must no longer have sufficient memory of the matter recorded to allow her to testify fully or accurately. All that is required is some impairment of memory.

5. At trial, the witness must remember that the record is accurate. That is, while the witness does not remember the facts recorded, she does remember that the record is accurate.

6. Those are the foundational elements, and then there is this restriction on the use that can be made of the record: "[It] may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party

A. Text of the Rule
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
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(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has in¬sufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

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Records (and Absence of Records) of a Regularly Conducted Activity: Rules 803(6) & (7)

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Foundational Elements

1. The out-of-court statement must be a record (or an absence of an entry in a record) that was made in the course of a regularly conducted business activity.251 The out-of-court declarant is the key here—the out-of¬court statement needs to be made as part of his or her business. (But, as noted under the third foundational element, below, the person actually making the record need not necessarily have firsthand knowledge of what he or she is recording.) Business is broadly defined in the rule and does not need to be for profit.

2. The record must have been made at or near the time of the event recorded; in other words, made while memory was fresh.

3. The record must have been made by someone who either: (a) had personal knowledge of what is recorded, or (b) based the record on information provided by someone who both had personal knowledge and provided the information in the regular course of the particular activity involved.

4. Those are the foundational elements, and then there is a trustworthiness clause: "unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness!' This allows the judge to keep the evidence out, even if the foundational elements are satisfied, if the judge is sufficiently suspicious of the evidence.

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Public Records and Reports: Rule 803(8)

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Foundational Elements

1. The out-of-court statement must be a public record or report.

2. It must set forth one of the following three kinds of things:

(a) The activities of the office or agency that prepared the report.

(b) Matters the agency had a legal duty to observe and a legal duty to re¬port upon (unless it is a criminal case and the record in question is a police report; this protects defendant's confrontation rights).

(c) Factual findings resulting from an investigation made pursuant to authority granted by law. This includes factually based conclusions or opinions. This part of the exception only applies in civil actions and when the evidence is offered against the government in criminal actions. It is not available for the government to use against the defendant in a criminal action.

3. And then there is a "trustworthiness" clause. The record or report is admissible unless the evidence does not seem trustworthy. Once the foundation for the exception is established the court can still decide that the evidence does not seem trustworthy and sustain the hearsay objection.

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Absence of Public Record or Entry: Rule 803(10)

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Foundational Elements

1. There must be evidence that the public official or agency in question regularly made and preserved such records or entries.

2. There must be either testimony or a Rule 902(4) certification that a diligent search failed to uncover such a record or such an entry.

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Statements in Documents Affecting an Interest in Property: Rule 803(15)

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Foundational Elements

1. The statement must be "contained in a document purporting to establish or affect an interest in property."

2. The statement must be "relevant to the purpose of the document."

3. There must not be subsequent inconsistent dealings with the property in question

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Statements in Ancient Documents: Rule 803(16)

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Foundational Elements

1. The document is 20 years old or older.

2. The document is authenticated, that is, it is shown to be what it purports to be. For example, it was found where you would expect such a document to be found.

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Market Reports, Commercial Publications: Rule 803(17)

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Foundational Elements

1. The out-of-court statement must be a market quotation, tabulation, list, directory, or other published compilation.

2. The out-of-court statement must be generally used and relied upon by either the general public or persons in a particular occupation

Need + Reliability = 1 1. Need
What was the barometric air pressure on a particular day two years ago? What was last year's NADA Blue Book list-price for a 1987 Mercedes Benz 300D, fully loaded and in excellent shape? In December of 1995, what was the address of the Paris office of Willkie Farr & Gallagher? If it is important in today's trial to know any of these things, how are you going to prove it? The kinds of facts covered by this exception tend to be the kinds of facts people do not keep in long-term memory.

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Learned Treatises: Rule 803(18)

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Foundational Elements

1. The exception is limited to certain specific topics and certain specific sources. The out-of-court statement must be on a subject of history, medicine, or other science or art, and it must be from a treatise, periodical, or pamphlet.

2. The out-of-court statement must either be relied upon by an expert witness in direct examination or called to the attention of an expert witness on cross-examination.

3. The treatise, periodical, or pamphlet must be established as reliable by testimony or admission of the witness or by other expert testimony or by judicial notice.

4. Though not a foundational element, the statements may be read into evidence but the text will not be received as an exhibit.

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Unavailability Defined

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So long as the unavailability was neither procured by nor a result of the wrongdoing of the party seeking to take advantage of the exception, the declarant's in-court testimony is unavailable in situations that include any of the following:
(a) Privilege: The court upholds the out-of-court declarant's assertion of a testimonial privilege. This includes any of the evidentiary privileges and the constitutional privilege against self-incrimination.8 It is not enough that a declarant invokes a privilege and, as a result, is not called to testify. The witness must be exempted from testifying by a ruling of the court.
(b)Refusal to Comply with a Court Order to Testify: Testimony is unavailable if the declarant refuses to testify in the face of a court order commanding the de¬clarant to do so. This part of the definition includes any witness who refuses to testify for any reason, whatever the witness's motivation: fear, loyalty, love, stubbornness, ignorance.... In some cases this picks up where the first part of the definition leaves off, i.e., when a declarant called as a witness asserts a privilege, the privilege is denied, and the declarant is ordered to testify, but still refuses.
(c)Lack of Memory: The out-of-court declarant testifies, but testifies to a lack of memory of the subject matter of the out-of-court statement.
(d)Death or Infirmity: The out-of-court declarant has died or is unable to testify because of the effects of a disabling physical or mental infirmity.
(e) Reasonable efforts to secure declarant's testimony failed: Testimony is unavailable if, despite having made reasonable efforts to do so, the proponent of the statement has been unable to get the declarant into the courtroom and unable to secure the declarant's testimony in some other way, such as by deposition. (The unavailable-by deposition requirement is true for all Rule 804 exceptions but for the former testimony exception, Rule 804(b)(1); the proponent need not take the declarant's deposition if the proponent has qualifying former testimony.) Inability to get the declarant into the courtroom may include that the declarant cannot be located; cannot be extradited and refuses to appear voluntarily; or is beyond the range of the court's subpoena power and refuses to appear voluntarily.
(f) Five Categorical Examples: The rule states the five categorical examples of unavailability just discussed. The world, of course, is not so clearly divided, so these are only examples. There are situations that overlap into all or parts of one or more of the categories. For example, a child declarant was unavoidably absent when he " 'froze' and would not even stand or communicate to take the oath."16 Perhaps the example fits into the second category "persists in refusing to testify ... despite an order of the court to do so." Perhaps, however, the court would not have to order the child to testify and this example fits into the fourth category—unable to testify because of a then existing physical or mental illness or infirmity. Perhaps this hypothetical frozen child does not readily fit into any of the five categories. Since the categories are not all inclusive, the child does not have to.

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Former Testimony Exception: Rule 804(b)(1)
In General.

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A. Text of the Rule

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable18 as a witness:
(1) Former testimony. Testimony given as a witness at another hear¬ing of the same or 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 by direct, cross or redirect examination.

All versions of the former testimony exception are about these five things: (1) testimonial unavailability; (2) identity of parties; (3) a statement made under oath; (4) the opportunity to cross-examine the declarant; and (5) the motivation to cross.

There are three versions of this exception. Starting with the one that lets in the least amount of hearsay evidence and ending with the one that lets in the most, they are: (1) the federal rule that applies in criminal cases; (2) the federal rule that applies in civil cases; and (3) the proposed federal rule, which was changed by Congress before being enacted into law, but became the rule is some states' statutes

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Former Testimony Exception: Rule 804(b)(1)

Criminal Cases under the Federal Rules of Evidence Foundational elements

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Criminal Cases under the Federal Rules of Evidence Foundational elements:

1. As with all Rule 804 exceptions, the out-of-court declarant's in-court testimony must be unavailable.

2. The out-of-court statement must have been made under oath at a prior legal proceeding—some kind of hearing or a deposition—in the same or a different case.

3. The party against whom the hearsay statement is offered must have been a party to the former proceeding. In federal criminal cases, Rule 804(b)(1) does not require that both parties to the second action have been parties in the first action; just the party against whom the evidence is offered in the second action.

4. Both of the following must be satisfied:

(a) Opportunity: At the former proceeding, the party against whom the hearsay is now offered must have had an opportunity to question the declarant (by direct, cross, or redirect examination). Actual questioning is not required, just the opportunity.

(b) Motive: The party against whom the hearsay is offered must have been similarly motivated to cross-examine the declarant at the proceeding where the former testimony was taken as at the proceeding where it is offered.

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Former Testimony Exception: Rule 804(b)(1)

Civil Cases under the Federal Rules of Evidence Foundational elements

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Civil Cases under the Federal Rules of Evidence Foundational elements:

1. The declarant's in-court testimony must be unavailable.

2. The statement must have been made under oath at a prior legal proceeding—a trial, some kind of hearing, or a deposition—in the same or a different case.

3. Either the party against whom the statement is now offered or a predecessor in interest of that party must have been a party to the former proceeding. (In federal-civil cases, the rule requires less identity of parties than in the situation described above.)

4. Both of the following must be satisfied:
(a) Opportunity: At the former proceeding, this party or its predecessor in interest must have had an opportunity to question the out-of-court declarant.

(b) Motive: The party or predecessor-in-interest's motivation to question the witness must be similar in each proceeding.

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Grand Jury Testimony and The Former testimony Exception

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Grand Jury Testimony Summarized

If the in-court testimony of the grand jury witness is unavailable, the former testimony exception may be able to be used by the defendant to introduce grand jury testimony against the prosecution. The prosecution had an opportunity to examine the witness presented to the grand jury and sometimes the prosecution had a sufficiently similar motive to examine the witnesses presented to the grand jury. The former testimony exception cannot be used by the prosecution to introduce grand jury testimony against the defendant. Since defense counsel is not allowed into the grand jury room, defense counsel never has the opportunity to examine grand jury witnesses. Since defense counsel never has the opportunity to examine grand jury witnesses, this exception can never be used to introduce grand jury testimony against the defendant in a criminal case

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The confrontation clause and The former Testimony Exception

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The Confrontation Clause

Evidence that is admissible under the federal rules version of this exception is also admissible under the Confrontation Clause. The in-court testimony of the witness must be unavailable and the criminal defendant must have been a party to the prior proceeding and must have had the opportunity and a similar motive to cross examine (i.e., to confront) the witness. When the exception is covered, the Confrontation Clause is as well.

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Statements under Belief of Impending Death: Rule 804(b)(2)

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Foundational Elements

1. As with all Rule 804 exceptions, the out-of-court declarant's in-court testimony must be unavailable.

2. When the declarant made the statement, the declarant must have believed he or she was about to die. (As in the Use Note, the declarant need not be dead at the time of the trial. Declarant's testimony must be unavailable, but it need not be unavailable on account of-death.)

3. The out-of-court statement must concern the cause or the circumstances of what the declarant believed to be his or her imminent death.

4. The case in which the out-of-court statement is offered must be either a civil case or a prosecution for homicide. (This fourth foundational element was not part of the proposed federal rule of evidence. Congress adopted this change before enacting the rules into law. This is not a foundational element in some states whose rules are based on the proposed rules.)

Text of the Rule
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(2) Statement under belief or 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 or circumstances of what the declarant believed to be impending death.

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Statements under Belief of Impending Death: Rule 804(b)(2)

Need + Reliability = 1 1. Need

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Need + Reliability = 1 1. Need
The need for this evidence is that often when a person thinks he or she is about to die, that person goes ahead and dies. Without this exception or the coincidence of some other exception," when the out-of-court declarant does die, the evidence is lost.
Second, even if the out-of-court declarant does not die, this is a Rule 804 exception. Therefore, one of the foundational elements is the unavailability of the declarant's in-court testimony. Therefore, whether the declarant dies or not, without some exception to the hearsay rule the testimony will be lost

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Evidence of a Belief in the Imminence of Death

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The following may be evidence of whether or not declarant's believe their death is imminent:

(a) The declarant's direct statements on the subject—positive or negative.

(b) The declarant's indirect statements on the subject.

(c) The nature of the illness or the wound.

(d) The direction declarant's condition was taking. Was the declarant's condition improving at the time of the statement, or worsening?

(e) The kind of weapon that inflicted a wound. Small caliber derringer fired from some distance, versus shotgun from close-range.

(f) Statements others have made to the out-of-court declarant about his condition, including, of course, statements by medical personnel.

(g) Declarant's knowledge of the injuries of others involved in the same incident.

(h) Opinion evidence as to the declarant's feeling, attitude, or belief, perhaps through the testimony of an attending physician.

(i) The activity of those around the declarant. That is, not just their statements, but their body language. For example, if an attending physician is engaging in life saving measures and the declarant is sufficiently knowledgeable to appreciate that the steps being taken are a sign of the extreme gravity of his or her condition.

(j) The receipt of a sacrament of impending death, such as The Last Rites, or perhaps the waiving off of such a sacrament.
All this foundational element requires is enough evidence to convince the judge that the declarant did believe that he or she was about to die.

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The Confrontation Clause and The impending death Exception

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Under the Confrontation Clause, the general rule is that testimonial hearsay statements offered against the accused in a criminal case are inadmissible unless the accused has, or has had, an opportunity to cross-examine the declarant. The one exception to this general rule may be testimonial statements made under belief of impending death. In Crawford v. Washington, the Supreme Court stated that while it did not need to decide the question in that case, the Confrontation Clause may "incorporate[] an exception for testimonial dying declarations."

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Statements Against Interest: Rule 804(b)(3)

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Foundational Elements

1. As with all Rule 804 exceptions, the out-of-court declarant's in-court testimony must be unavailable.

2. At the time the out-of-court statement was made, it must have been sufficiently against the declarant's interest "that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."

3. At the time the out-of court statement was made, the declarant must have known it was against her interest.

4. In a criminal trial, if the defense offers an out-of-court statement that tends to exonerate the defendant and lay the guilt on the out-of-court declarant, there must be "corroborating circumstances clearly indicating the trustworthiness of the statement."

Text of the Rule
(b) Hearsay exception. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(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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Statements Against Interest: Rule 804(b)(3)

Need + Reliability = 1 1. Need

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Need + Reliability = 1 1. Need

This is a Rule 804 exception so the declarant's in-court testimony must be unavailable. Thus, without this exception or the coincidence of another, we will lose what this declarant has to add to the case.

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Statement of Personal or Family History: Rule 804(b)(4)

Declarant's statement about him- or herself:

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Declarant's statement about him- or herself:

1. As with all Rule 804 exceptions, the out-of-court declarant's in-court testimony must be unavailable.

2. The out-of-court statement must be a statement of fact.

3. The fact stated must concern the declarant's own personal or family history ("birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history").

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Statement of Personal or Family History: Rule 804(b)(4)

Declarant's statement about someone else

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Declarant's statement about someone else:

1. Unavailability: The declarant's in-court testimony must be unavailable.

2. The out-of-court statement must be a statement of fact.

3. The fact stated must be a statement of the personal or family history (as above) of either someone to whom the declarant is related by blood, adoption, or marriage, or someone with whose family the declarant is so intimately associated that the declarant is likely to have accurate information concerning the thing declared.

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Statement of Personal or Family History: Rule 804(b)(4)

Text of the Rule

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Text of the Rule

(b) Hearsay exception. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the others family as to be likely to have accurate information concerning the matter declared.

Foundational Elements
There are two exceptions here. One covers a declarant's statement about him or herself. The other covers declarant's statement about someone else.

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Forfeiture by Wrongdoing Exception: Rule 804(b)(6)

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Foundational Elements

1. A party engaged or acquiesced in wrongdoing that was intended to and did procure the unavailability of the declarant as a testifying witness.

2. The out-of-court statement is offered against that party.

Text of the Rule
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness

Need + Reliability = 1
Need
The need for this evidence is self-evident. The exception requires that "wrongdoing ... procure[d] the unavailability of the declarant as a witness." The live testimony of the declarant is unavailable.