Evidence - Hearsay Part 2 Flashcards
Hearsay Exclusions
These are statements that look like hearsay but aren’t. They also aren’t hearsay exceptions. They are considered non-hearsay.
2 broad categories of hearsay exclusions:
1) certain prior statements of testifying witnesses
2) statements made by an opposing party (aka statements of party opponent)
Testifying Witness Exclusions
If a testifying witness on the stand refers to something he said out of court, and asserts that statement for the truth of what it says, that’s normally hearsay. BUT in 3 situations, the prior OOC statement can come in to prove what it says. They apply ONLY to a live witness testifying at trial. Under oath and subject to crossX.
Testifying Witness’ Prior Statement of Identification
A testifying witness can bring in an OOC identification of someone for its truth.
Say a witness is testifying and is asked: can you identify the man who robbed you? and he points to the defendant. That’s not hearsay because it’s not an OOC statement. It’s a live in-court identification. But what if the question was: in the line up, you selected the one who robbed you. Can you tell us who you identified? That’s about a OOC statement offered to prove the one he points to is the robber. So it’s offered for its truth. It satisfies the general hearsay rule but it’s one of the NONHEARSAY EXCLUSIONS.
Testifying Witness’s Prior Inconsistent Statements
A testifying witness who made a prior OOC statement that now conflicts (inconsistent) with what they are currently saying can be brought in IF USED FOR IMPEACHMENT. Basically showing that the witness is a liar. Usable even if the prior OOC statement was not made under oath.
You can also introduce it for its truth IF you can show that the witness made this statement UNDER OATH. This makes it a nonhearsay statement. But if it wasn’t under oath, then it’s hearsay and can’t come in for its truth.
Testifying Witness’ Prior Consistent Statement
Something the witness said comes in to rehabilitate an impeached witness. And it’s also admissible for its truth.
This comes up in 2 situations:
1) when a witness is impeached on the ground that they have an improper motive or influence affecting their testimony (this is a claim the witness decided to lie for some reason). In these scenarios, the prior OOC statement is used to show that the witness is consistent and that whatever recent motive is being attributed to them is not making them change their story. LIMITATION: the prior consistent statement needs to have been made before the improper bias/motive arose.
2) a prior consistent statement can rehabilitate the witness if they have been impeached for a faulty memory or a prior inconsistent statement (for example, in his first interview with police, the witness accidentally said something inconsistent with what he’s saying now, but then he backtracked and made a statement consistent with what he’s asserting now)
Note: the prior consistent statement should have a special tendency to rehabilitate the witness. If the witness is being impeached for generally being a liar, and the prior consistent statement you’re introducing doesn’t really help, then it would still be hearsay.
Statements by an Opposing Party
“Statement/Admission of Party Opponent” means same thing
A prior OOC statement offered for its truth by the party opponent is non-hearsay. Must be 1) a statement by the other party 2) offered AGAINST that party. You can’t introduce your own statements, but you can introduce your enemy’s statement against them. Any statement by a party, even if it was in their interest when they said it, is admissible against that party.
Adoptive Statement = when a party indicates they believe someone else’s statement is true. Often an “Admission by Silence” - when a party 1) fails to respond to an accusatory statement, 2) they heard and understood the accusation, 3) they were capable of denying the accusation, and 4) a reasonable person would have denied it.
Victim’s statements don’t qualify because they are not the “party opponent” even if this is bullshit and doesn’t make sense IRL. The prosecution is not the victim in a murder a trial.
Vicarious Statements of an Opposing Party
This is when we hold a party responsible for statements someone else made because of the relationship between the party and the declarant. “Vicarious admissions” we attribute to the party because of the special relationship. Like when a party authorizes someone else to speak on their behalf. Like a spokesperson. This statement is attributable to the party and can be offered against them.
1) Statements by Employee/Agent = sometimes employer is responsible for what agent says. That statement is admissible against the principal/employer IF: 1) the statement concerns a matter within the SCOPE of agency/employment AND 2) the statement was made DURING the agency/employment
Ex: low level employee crashes truck into someone’s house, says “oops I was reaching for a beer while driving lol” that is nonhearsay. It’s admissible against the employer.
If someone isn’t on the job, it can still be nonhearsay. The vicarious admission rule just requires that the relationship exists, not that it was during work. But make sure that it concerns a matter within the scope of THAT EMPLOYEE’s employment. So a truck driver talking about what the HR people do doesn’t qualify for the nonhearsay exclusion.
2) Statement of Party’s Coconspirator = not hearsay when offered against the party if it was made 1) DURING and 2) IN FURTHERANCE of a conspiracy. Note: it better really be during, and not after.
Proponent needs to establish the employer/employee relationship or the existence of the conspiracy. The statement alone can’t establish those things. You need independent evidence too.
Hearsay within Hearsay
One OOC statement being offered for its truth that repeats or otherwise contains another OOC statement being offered for its truth.
Ex: John: “Mike told me that Julie said she was sick.” That’s 2 layers of hearsay.
When you have an OOC declarant repeating the statement of another declarant, think of hearsay layers.
When can it be admitted? Only if all levels independently satisfy either an exclusion or exception.
What does it mean that Julie said she was sick? It’s offered for the truth that Julie actually was sick.
The next layer, that she told this to Mike, to be offered for its truth means that Julie actually said those words to Mike.
Big picture: if an outer hearsay statement contains inner hearsay statements, these are different chains for hearsay purposes. 1 chain might be independently clean and admissible but the 2nd may not. You don’t have to through the baby out with the bathwater. The clean chain can be admitted, but the unclean one would have to be excluded/redacted.
