1
Q
What is Hearsay?
A
A declarant’s out-of-court statement that is offered to prove the truth of the matter asserted.
2
Q
What is a statement?
A
- A person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion (FRE 801a).
- But non-assertive conduct is not a statement, therefore, it cannot be hearsay.
3
Q
Who is the Declarant?
A
The statement must be by a human declarant, not one made by an animal or machine.
4
Q
Non-hearsay purposes (C ELVIS)
A
Remember that if evidence is not being offered to prove truth of the matter asserted, it is not hearsay. E.g.:
- Capacity to see, hear, speak, etc.
- Effect on listener
- Legally operative facts (e.g. notice of listener)
- Verbal Acts (defamation, slander, and deceit).
- Impeachment
- State of Mind (circumstantial evidence of declarant’s state of mind (but unlike the state of mind hearsay exception it is not used to prove truth of matter asserted).
5
Q
Legally Binding Statements
A
Are not hearsay because whether the declarant was being truthful did not matter (he said the statements, therefore, he is bound).
6
Q
Prior Inconsistent Statements
A
Do not violate the hearsay rules because impeachment is a non-hearsay purpose.
7
Q
Hearsay Exemptions
A
Certain things are exempt from being considered hearsay including certain prior statements of a declarant-W and certain statements made by the opposing party (including vicarious admissions)
8
Q
Declarant-Ws Prior Statement
A
A statement is not hearsay when the declarant testifies and is subject to cross-examination about a prior statement and the statement is either:
- a prior sworn inconsistent statement
- a prior consistent statement
- a prior identification
9
Q
Prior Sworn Inconsistent Statement
A
A statement which is inconsistent and given under the penalty of perjury at a trial hearing, or other proceeding or in a deposition.
10
Q
Prior Consistent Statement
A
- Statement that is consistent and which is offered to rebut the express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive; or to rehabilitate the declarant’s credibility.
- But when used to rebut a charge of fabrication or improper motive, the prior consistent statement has to predate the motive for the alleged fabrication or improper motive.
11
Q
Prior Identification
A
A statement which identifies a person as someone the declarant perceived earlier.
12
Q
Opposing Party’s Statement
A
A statement is not hearsay when the statement is offered against an opposing party and the statement is:
- made by the party in an individual or rep capacity
- one the party manifested that it adopted or believed to be true
- made by a person whom the party authorized to make a statement on the subject (must be evidence other than statement itself)
- made by the party’s agent or employee on a matter within the scope of that relationship (must be evidence other than the statement itself)
- made by the party’s co-conspirator during and in furtherance of the conspiracy (must be more evidence of conspiracy other than statement itself)
13
Q
Party Opponent Statements: Against a Party’s Interest?
A
-A statement does not need to be against interest when it was made when it was admissible under this rule.
14
Q
Adoptive Statement
A
There must be evidence sufficient to show the party heard and understood the statement and adopted it as their own, either by words, conduct, or even silence.
15
Q
Authorized Statements
A
Authority to speak may be express or implied.
16
Q
Adoptive Statements: Adopting a Statement by Silence
A
An admission by silence may be found where:
- the named party heard and understood what another said,
- the named party had an opportunity to deny/correct the statement and
- a reasonable person would have felt compelled to deny/correct the statement.
17
Q
Vicarious Statement of an Agent or Employee
A
Are admissible if made during the employment and concerned a matter within the scope of employment (no authority to speak is required)
18
Q
Co-Conspirator’s Statement
A
Scope of conspiracy must be ascertained to determine whether the statement made by co-conspirator after arrest is inadmissible, since it is not made during the conspiracy.
-Keep in mind that the existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence before a co-conspirator’s statement is admitted under this rule.
19
Q
Prior Identifications: Voice Identification?
A
Most courts have found identifying a person after hearing their voice to constitute an identification for the purpose of the hearsay exemptions.
20
Q
Prior Identifications: Availability
A
A prior identification will be admissible non-hearsay only where the declarant (eyewitness) is presently testifying at the trial.
21
Q
Hearsay Exception Categories
A
- Those which are admissible regardless of whether the declarant is available as a W (FRE 803)
- Those which require that the declarant be unavailable for the evidence to be admissible (FRE 804)
22
Q
Hearsay Exceptions: Justifications
A
All exceptions exist for one of both of two reasons:
- Reliability- the circumstances under which the out-of-court statement was made makes it more reliably truthful
- Necessity- the evidence is important and may not be available in any other way
23
Q
Hearsay Exceptions Independent of W Availability
A
Includes:
- Present Sense Impressions
- Excited Utterances
- State of Mind
- Statement Made for Medical Diagnosis or Treatment
- Recorded Recollection
- Records of a Regularly Conducted Activity
- Absence of a Regularly Conducted Activity
- Public Records
- Public Records of Vital Statistics
- Absence of a Public Record
- Records of a Religious Organizations Concerning Personal or Family History
- Certificates of Marriage, Baptism, and Similar Ceremonies
- Family Records
- Records of Documents that Affect an Interest in Property
- Statements in Documents that Affect an Interest in Property
- Statements in Ancient Documents
- Market Reports and Similar Commercial Publications
- Statements in Learned Treatises, Periodicals, or Pamphlets
- Reputation Concerning Personal or Family History
- Reputation Concerning Boundaries or General History
- Reputation Concerning Character
- Judgment of a Previous Conviction
- Judgments Involving Personal, Family, or General History, or a Boundary
24
Q
Present Sense Impression
A
A statement made describing or explaining an event or condition made while or immediately after the declarant perceived it.
25
Excited Utterance
- A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
- The rationale is that emotional stress suspends the thought necessary for conscious fabrication and that the recent nature of the exciting event minimizes the danger of faulty memory.
- Unlike present-sense impressions, the rule does not require spontaneity, provided the statement was made under the stress of excitement.
26
State of Mind
- A statement of the declarant's then-existing state of mind (e.g. motive, intent, plan) or emotional, sensory or physical condition (such as mental feeling, pain, or bodily health). Cannot include backward-looking statements.
- Cannot include a statement of memory or belief to prove fact remembered or believed unless it relates to validity or terms of a declarant's will.
27
Statement Made for Medical Diagnosis or Treatment
Applies to a statement that:
- Is made for and is reasonably pertinent to medical diagnosis or treatment; and describes: medical history, past or present symptoms, symptoms inception; and symptoms general cause
- The rule permits statements made to a physician for purpose of enabling him to testify (purpose is to obtain a diagnosis)
28
Who can Statements be Made to for Medical Diagnosis/Treatment Exception to Apply?
-The rule allows admission of remarks made to other medical attendants or even family members if made for the purpose of seeking medical attention.
29
Recorded Recollection
A record that:
- Is on a matter the W once knew about but now cannot recall well enough to testify fully and accurately
- Was made or adopted by W when the matter was fresh in the Ws memory
- Accurately reflects the Ws knowledge
30
Admitting a Recorded Recollection Into Evidence
If admitted, the record may be read into evidence. But it may only be received as an exhibit if offered by an adverse party.
31
What is a Record?
A memorandum, report, data complication, and any ESI.
32
Relationship Between Recorded Recollection Exception & Refreshment
As a prerequisite, refreshment regarding the witness's memory must have been attempted and failed (W must lack current memory of the event)
33
How does a W "Adopt" a Writing to Satisfy the Rules?
- This requires that the W examined the writing and affirmed its correctness at a time when memory was fresh.
- There is no time when the recording must be made or adopted, but there should be proof that recollection was clear when the writing was made or verified.
34
Records of a Regularly Conducted Activity
Includes a record of an act, event, condition, opinion, or diagnosis if:
- the record was made at or near the time by, or from info transmitted by, someone with knowledge
- the record was kept in the course of a regularly conducted activity of a business, org., etc., whether or not for profit
- making the record was a regular practice of that activity (cannot be made for litigation purposes)
- the above conditions are shown by the testimony of the custodian or another qualified W, or by a certification
- neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness (entry should be made at or near time of the event/condition described by entry)
35
Absence of a Record of a Regularly Conducted Activity
Is permissible if:
- Evidence is admitted to prove that the matter did not occur or exist
- A record was regularly kept for a matter of that kind
- Neither the possible source of the info nor other circumstances indicate a lack of trustworthiness
36
Public Records
Is permissible if it includes:
- The office's activities
- A matter observed while under a legal duty to report, but not including a matter observed by law enforcement in a criminal case
- For civil cases or criminal cases against gov --> factual findings from a legally authorized investigation and
- Neither the source of info nor other circumstances indicate a lack of trustworthiness.
37
Public Records of Vital Statistics
Includes a record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
38
Absence of a Public Record
Testimony, or a certification under Rule 902, that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove:
- The record or statement does not exist; or
- The matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.
39
Records of Religious Organizations Concerning Personal or Family History
Includes a statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious org.
40
Certificates of Marriage, Baptism, and Similar Ceremonies
A statement of fact contained in a certificate:
- Made by a person who is authorized by a religious org. or by law to perform the act certified
- Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
- Purporting to have been issued at the time of the act or within a reasonable time after it.
41
Family Records
A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
42
Records of Documents that Affect an Interest in Property
The record of a document that purports to establish or affect an interest in property if:
- The record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it
- The record is kept in a public office; and
- A statute authorizes recording documents of that kind in that office.
43
Statements in Documents that Affect an Interest in Property
- Includes a statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose.
- However, this rule does not apply if later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
44
Statements in Ancient Documents
A statement in a document that was prepared before January 1, 1998, and found in a place where these items are typically found (authenticity is established)
-An example is archives, libraries, and even a shoebox kept under a bed.
45
When is a Statement "Prepared" Under the Ancient Documents Exception?
When the statement proffered was recorded in that document. Therefore, it is proper to submit scans of a document to the court as long as it was prepared before 1998.
46
Market Reports and Similar Commercial Publications
Include market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations (e.g. the market price of IBM stock)
47
Statements in Learned Treatises, Periodicals, or Pamphlets
A statement contained in a treatise, periodical, or pamphlet if:
- the statement is called to the attention of an expert witness on cross or relied on by the expert on direct and
- (Reliability)- the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice
48
What Happens to a Statement Admitted Under the Treatise Exception?
The statement may be read into evidence and used as substantive evidence or evidence for impeachment, but the treatise or pamphlet is not received as an exhibit.
49
Reputation Concerning Personal or Family History
A reputation among a person's family by blood, adoption, or marriage; or among a person's associates or in the community concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, marriage, or similar fact of personal or family history.
50
Reputation Concerning Boundaries of General History
A reputation in a community arising before the controversy -- concerning boundaries of land in the community or customs that affect the land in the community, or concerning general historical events important to that community, state, or nation.
51
Reputation Concerning Character
A reputation among a person's associates or in the community concerning the person's character is a hearsay exception.
52
Judgment of a Previous Conviction
Evidence of a final judgment of conviction if:
- The judgment was entered after a trial or guilty plea (but not a nolo contendere plea)
- The conviction was for a crime punishable by death or by imprisonment for more than a year
- The evidence is admitted to prove any fact essential to the judgment
- When offered by the P in a criminal case for a purpose other than impeachment, the judgment was against the D (therefore, government cannot use it against anyone other than the accused)
- Remember that a civil judgment may not be used in a later criminal proceeding (due to higher BOP)
53
Judgments Involving Personal, Family, or General History or a Boundary
A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
- Was essential to the judgment; and
- Could be proved by evidence of reputation.
54
Hearsay Exceptions Dependent on Unavailability
- Former Testimony
- Dying Declaration
- Statement Against Interest
- Statement of Personal or Family History
- Statement Offered Against a Party that Wrongfully Caused the Declarant's Unavailability (Forfeiture)
- Remember, that when a W is unavailable, the Confrontation Clause is implicated in a criminal case
55
Criteria for Unavailability (PRISM)
A declarant is unavailable if:
- (Privilege) exempted from testifying about SM of declarant's statement because of court rule or privilege
- (Refusal)- to testify about SM despite being ordered to do so
- (Incapacity)- cannot be present or testify because of death or a then-existing infirmity, physical illness, or mental illness; or
- (Subpoena) absent and the proponent has not been able to procure the declarant's presence by process or any other reasonable means
- (Memory)- W testifies that they cannot remember
56
BOP for Unavailability (PRISM)
The proponent of the testimony bears the burden to prove the declarant is unavailable, which requires some work (party must actually look instead of just sending a subpoena).
57
When a Party Wrongfully Makes a W "Unavailable"
A declarant is not unavailable for the purposes of the hearsay exceptions if a statement's proponent procured or wrongfully caused the declarant's unavailability in order to prevent the declarant from attending or testifying.
58
Former Testimony
Applies to testimony that:
- Was given at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
- Is now offered against a party who had (or in a civil case whose predecessor in interest had) an opportunity and similar motive to develop it by direct or cross.
59
Dying Declaration
- Only permitted in P for homicide or in a civil case.
- Only applies to statements that declarant, while believing the declarant's death to be imminent, made about the expected death's cause or circumstances.
60
Statement Against Interest
A statement that a reasonable person in the declarant's position would have made only if the person believed it true because:
- it was so contrary to the declarant's proprietary or pecuniary interest or
- had a great tendency to invalidate the declarant's claim against someone else or
- could expose declarant to civil or criminal liability
- If the evidence is offered in a criminal case and can expose declarant to criminal liability --> statement must also be supported by corroborating circumstances that clearly indicate its trustworthiness.
61
Forfeiture by Wrongdoing
A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing -- the declarant's unavailability as a W and did so intending that result.
62
Confrontation Clause
Under the Confrontation Clause of the Sixth Amendment, testimonial hearsay is inadmissible against a criminal D who has not had an opportunity to cross-examine the declarant.
63
What is a Testimonial Statement Under the Confrontation Clause?
Statements where the declarant reasonably expected would be used in a subsequent prosecution, typically, made to police or government employee, or made in a "formal" setting, like in a courtroom, deposition of the like.
64
Forfeiting Right to Confrontation
A criminal D forfeits his Confrontation Clause rights if he causes the unavailability of the declarant with the intent to prevent that declarant from testifying.
65
Primary Purpose Test
Looks at the combined inquiry of both the declarant and the interrogator. Relevant factors include:
- the nature of the dispute
- the scope of the potential harm to the victim
- the threat to additional identifiable victims
- the existence of a more generalized threat to the public
- the suspect's choice of weapon; and
- whether the suspect remains at large or had been located by the police and/or any other first responders
66
When Testimonial Evidence is Admitted Even if A Declarant is Unavailable:
Exceptions include:
- Dying declarations
- Child W testifying via closed circuit
- Ongoing emergency
- Chemical analysis report with "Notice and Demand" statute
67
Chemical Analysis Report with "Notice and Demand" Statute
A report of a chemical analysis may be admitted over Confrontation Clause objection if the jurisdiction has a "notice and demand" statute, which requires the government to give prior notice of its intent to offer the analysis results in hearsay form.
68
Multiple Levels of Hearsay
When there are multiple levels, each level of hearsay must be examined separately and a hearsay exception must be found.
69
Residual Exception
Even if no specific hearsay exception applies, a hearsay statement might be admitted if (FRE 807a):
- the statement has equivalent circumstantial guarantees of trustworthiness
- the statement is offered as evidence of a material fact
- it is more probative on the point for which it is offered than any other evidence that proponent can obtain through reasonable efforts
- admitting it will best serve the purposes of the FRE and the interests of justice
70
Notice of Residual Exception
The statement under the exception is only admissible if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.
71
Impeachment and Rehabilitation of Hearsay Declarants
Impeachment and rehabilitation of a hearsay declarant is accomplished in the same way that a declarant on the stand is impeached or rehabilitated.
Evidence
flashcards
Decks in class (12)
# Cards
-
General Provisions35
-
Judicial Notice12
-
Relevancy and its Limits4
-
Admissibility of Specific Types of Evidence (Character, Habit, and more)40
-
Privilege59
-
Witnesses (General Rules)13
-
Impeachment21
-
Examination of Ws & Refreshment10
-
Lay and Expert Witnesses15
-
Hearsay71
-
Authentication & Identification19
-
Contents of Writings, Recordings, and Photos19
