Hearsay

Question 1

Hearsay Within Hearsay

Answer 1

An out-of-court statement that incorporates other hearsay within it (“hearsay within hearsay” or “double hearsay”) is admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule

Question 2

Non Hearsay Statements by or Attributable to Opposing Party

Answer 2

An opposing party’s statement (that is, a statement made by or attributable to a party and offered against that party) is not hearsay under the Federal Rules

Question 3

Non Hearsay Prior Statements

Answer 3

under the Federal Rules, a prior statement by a testifying witness who is subject to cross-examination is not hearsay if:
* The prior statement is one of identification of a person as someone the witness perceived earlier (even if the witness cannot remember making the identification);
* The prior statement is inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding; or
* The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on
some other ground

Question 4

HEARSAY EXCEPTIONS—DECLARANT UNAVAILABLE

Answer 4

Now we have come to the hearsay “exceptions.” These statements are hearsay, but are nevertheless admissible because they are considered to be especially necessary or reliable. There are 5 exceptions to the hearsay rule that condition admissibility of the hearsay statement on the present unavailability of the declarant to testify.

Question 5

Former Testimony

Answer 5

The testimony of a now-unavailable witness is admissible if:
* The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; and
* The party against whom the testimony is now being offered—or, in a civil case, the party’s predecessor in interest—had an had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding by direct, cross-, or redirect examination

Question 6

Statements Against Interest

Answer 6

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary (money), proprietary
(property), or penal (criminal) interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true.

Question 7

Dying Declarations—Statements Under Belief of
Impending Death

Answer 7

In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if:
* The declarant believed their death was imminent (they need not actually die); and
* The statement concerned the cause or circumstances of what the declarant believed to be their impending death

Question 8

Statements of Personal or Family History

Answer 8

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that:
* The declarant is a member of the family in question or intimately associated with it; and
* The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation

Question 9

Statements Offered Against Party Procuring
Declarant’s Unavailability

Answer 9

The statement of a person (now unavailable as a witness) is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability.
Remember, the statement meets this exception only if the party’s motivation was to prevent the declarant from testifying

Question 10

Excited Utterances

Answer 10

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event (meaning, before the declarant had time to reflect upon it), is admissible.

Question 11

Present Sense Impressions

Answer 11

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.

Question 12

Present State of Mind

Answer 12

A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is admissible.

Question 13

Statements Made for Purposes of Medical
Diagnosis or Treatment

Answer 13

A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for—and was reasonably pertinent to—medical diagnosis or treatment

Question 14

Records of a Regularly Conducted Activity—
Business Records

Answer 14

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if the following elements are met.

Question 15

Official Records and Other Official Writings

Answer 15

a. Public Records and Reports
The following records of a public office or agency are admissible:
* Records setting forth the activities of the office or agency (for example, payroll records);
* Recordings of matters observed pursuant to a duty imposed by law (for example, weather bureau records of temperature), but not including police observations in criminal cases; and
* In civil actions and against the government in criminal cases—but not against the defendant in a criminal case—records of factual findings resulting from an investigation authorized by law

Question 16

Limitation on Law Enforcement Records as Public
Records and Business Records

Answer 16

As a general rule, police reports can be admitted under the public records exception. Even the officer’s opinions and factual (not legal) conclusions can be admitted under this exception. However, public records and reports generally are not admissible
against the defendant in a criminal case. This means that investigative reports by the police, FBI, and other agencies are inadmissible in this situation.

Question 17

Recorded Recollection

Answer 17

As previously discussed, there is a hearsay exception for recorded recollections. Recall that under this exception, if a testifying witness’s memory cannot be revived, a party may introduce a memorandum
or other record that the witness made or adopted at or near the time of the event.

Question 18

Learned Treatises

Answer 18

statements contained in a learned treatise are admissible as substantive proof if (1) the treatise
is established as reliable authority and (2) the excerpt is relied upon by an expert during direct examination or brought to an expert’s attention on cross-examination. If admitted, such statements are read
into evidence but are not received as an exhibit

Question 19

Ancient Documents

Answer 19

Under the Federal Rules, statements in any authenticated document prepared before January 1, 1998, are admissible.

Question 20

Documents Affecting Property Interests

Answer 20

A statement in a document affecting an interest in property (such as a deed, will, etc.) is admissible if the statement is relevant to the document’s purpose.

Question 21

Family Records

Answer 21

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.

Question 22

Hearsay and the Confrontation Clause

Answer 22

Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) where:
* The statement is being offered against the accused in a criminal case (there is no confrontation concern in civil cases);
* The declarant is unavailable;
* The statement was “testimonial” in nature; and
* The accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial