Hearsay

Question 1

What is hearsay?

Answer 1

A statement made out of court being offered by a party to prove the truth of the matter asserted in the statement

Question 2

What out-of-court statements aren’t hearsay?

Answer 2

VICE
Verbal Acts
Impeachment
Circumstantial Evidence of State of Mind of D
Effect on the Listener

Question 3

Exemptions to the Hearsay Ban (not hearsay under 801(d)(1)(A)–(C))

Answer 3

When declarant is testifying and subject to cross:

• Inconsistent OOC statements made under penalty of perjury/oath at a trial, depo, etc.
• Consistent OOC statements offered to rebut an implied charge that IC statement was fabricated OR to rehabilitate the witness’s credibility after attacked
• OOC identifications

Question 4

How are the hearsay exemptions under 801(d)(1) different from common law impeachment?

Answer 4

CL impeachment is just to show contradiction/attack credibility. No truth value asserted. Under 801, the jury is free to believe the truth value asserted in the inconsistent statement.

Question 5

Opposing Party Hearsay Exemption

Answer 5

Statement is being offered against opposing party AND

• was made by the party OR
• was manifested to to be true or adopted by the party OR
• was made by a party authorized to speak on behalf of the party OR
• was made by the party’s agent or employee within the scope OR
• was made by the party’s coconspirator during and in furtherance of a conspiracy

Question 6

Party Opponent Parameters

Answer 6

Doesn’t matter whether party is available.
Applies in criminal and civil cases.
No reliability requirement (oath, etc.).
Bootstrapping allowed, but some separate evidence required.
Does not require personal knowledge.

Question 7

Present Sense Impression

Answer 7

801(1)
applies whether or not the declarant is available
a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
trial court will determine as a preliminary matter whether the statement was made at the time of the event or immediately after (bootstrapping allowed for this)
Orenstein says only 1-2 minutes

Question 8

Excited Utterance

Answer 8

803(2)
a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused
trial court will determine whether the declarant was under the stress of excitement caused by the event or condition at the time the utterance was made
bootstrapping is allowed
no specific time limit
declarant doesn’t have to be available

Question 9

Then-Existing

Answer 9

803(3)
State of mind, emotion, sensation, physical condition, or intent/plan/motive
Excludes statements of memory or belief offered to show the fact remember or believed unless it relates to the execution, revocation, identification, or terms of the declarant’s will
Can also be used to show circumstantial evidence that the declarant did what she planned (Hillmon)
declarant doesn’t have to be available

Question 10

Statement for Medical Diagnosis or Treatment

Answer 10

803(4)
statements made for and reasonably pertinent to medical diagnosis or treatment
includes past or present symptoms
can be made to nurse, EMT, family, etc.
must be pertinent to diagnosis
applies also to physicians who testify but don’t treat
declarant doesn’t have to be available

Question 11

Past Recollection Recorded

Answer 11

803(5)

• A witness once had knowledge of a matter in a record, but now cannot remember it well enough “to testify fully and accurately;”
• The record was made or adopted by the witness when the matter was “fresh in the witness’s memory;” and
• The record accurately reflects the witness’s knowledge at the time.
• Doesn’t apply where witness has complete memory OR no memory of event
• Can be read into evidence, but not admitted unless offered by the opposing party
• As a practical matter, declarant has to be available to testify the conditions are met

Question 12

Refreshing Memory

Answer 12

distinct from 803(5)
witness’s memory is refreshed with document
opposing party must be shown the doc
the OOC statement isn’t admitted and jury never sees or hears it

Question 13

Business Records

Answer 13

803(6)
• “A record of an act, event, condition, opinion, or diagnosis;”
• Made “at or near the time” of the act, event, condition, opinion, or diagnosis;
• Made by a person with knowledge, or made from information transmitted by a person with knowledge;
• Made by and transmitted to someone acting in the regular course of business (this is known as the business-duty rule);
• Made “in the course of a regularly conducted” activity of a business or organization; and
• Created in the “regular practice” of that business activity.

*A custodian or other qualified witness may lay the foundation. Exception doesn’t apply if opponent shows the information lacks trustworthiness.

Question 14

Public Records

Answer 14

803(8)

• admits matters observed by a public servant pursuant to a duty imposed by law when the public servant has a duty to report. It excludes, however, matters observed by law-enforcement personnel in criminal cases.
• covers factual findings resulting from an investigation made pursuant to legal authority.
• public servants may rely on inadmissible evidence in reaching their conclusions
• applies in both criminal and civil cases, but in criminal cases, only the accused can use it
• void if opponent shows lack of trustworthiness
• excludes matters observed by law enforcement in criminal cases
• self authenticating (no foundation needed)

Question 15

When is a declarant unavailable for purposes of 804?

Answer 15

Death, mental/physical disability, witness can’t be subpoenaed, the witness invokes a privilege, the witness refuses to testify, the witness appears and testifies that she can’t recall the subject matter

Question 16

804 Former Testimony Exception

Answer 16

• the declarant must be unavailable
• the former testimony must have been made under oath, subject to penalty for perjury
• in criminal cases, the party against whom the former testimony is offered must have had a similar motive and opportunity to cross the witness when the former testimony was first offered
• in civil cases, the former may testimony may be introduced if a party against whom the testimony is offered had a similar motive and opportunity to cross-examine the party’s predecessor in interest

Question 17

Dying Declaration

Answer 17

804(b)(2)

• declarant must be unavailable, but not necessarily dead
• declarant must believe death is imminent
• statement must concern the cause or circumstances of death
• the statement is offered in a civil case or homicide prosecution (not applicable in other criminal cases)

Question 18

Statements Against Interest

Answer 18

804(b)(3)

• the declarant is unavailable
• the declarant makes a statement that she knows is contrary to her own interest regarding her: financial and property interests, tort or contract interests, penal interests (criminal liability - in criminal cases, corroborating circumstances are required)

Question 19

Forfeiture by Wrongdoing

Answer 19

804(b)(6)

• admits hearsay statements by an absent declarant offered against a party who intentionally caused the declarant to be unavailable
• party must have specifically intended to deprive fact-finder of the witness’s testimony (murder, bribe, intimidate, etc.)

Question 20

Residual Exception

Answer 20

807

• designed to admit statements that are deemed particularly trustworthy but don’t fit into any exception
• must: constitute a material fact, provide a guarantee of trustworthiness, be more probative than any other potential evidence, be in the interest of justice, be presented only if the opponent receives notice