Hearsay

Question 1

Hearsay is…

Answer 1

An out-of-court statement offered to prove the truth of the matter asserted.

Question 2

Non-Hearsay

Answer 2

1. Legally Operative Facts
2. Effect on Recipient
3. State of Mind

Question 3

Legally Operative Facts

Answer 3

A statement offered to prove it was made, regardless of its truth, is non-hearsay.

Question 4

Effect on Recipient

Non-Hearsay

Answer 4

A statement offered to show the effect on the person who heard it (e.g. notice, knowledge) is non-hearsay.

Question 5

State of Mind

Non-Hearsay

Answer 5

A statement offered as circumstantial evidence of the speaker’s mental state is non-hearsay.

Question 6

Non-Hearsay Exclusions

Answer 6

1. Prior Inconsistent Statement
2. Prior Consistent Statement
3. Prior Identification
4. Party Opponent Statement

Question 7

Prior Inconsistent Statement

Answer 7

A prior inconsistent statement made under the penalty of perjury at a trial, hearing, proceeding, or in a deposition may be admissible for impeachment purposes AND substantive evidence.

*Declarant must be available

NOTE: A prior inconsistent statement not made under penalty of perjury is only admissible to impeach a witness, whether or not the declarant is available.

Question 8

Prior Consistent Statement

Answer 8

A prior consistent statement, whether made under oath or not, can be admissible for substantive purposes to rebut a charge of fabrication (only if it was made before the declarant had reason to fabricate it) or an attack on witness’s credibility.

Declarant must be available

Question 9

Prior Identification

Non-Hearsay Exclusion

Answer 9

A previous out-of-court identification of a person after perceiving that person may be admissible as substantive evidence.

Declarant must be available.

NOTE: Admissible even if the witness has no memory of the prior identification, because the witness is subject to cross-examination.

NOTE: Another witness who was present may testify about the prior identification.

Question 10

Party Opponent Statement

Answer 10

A statement made by the party to the current litigation being offered by an opposing party may be admissible as a non-hearsay exclusion.

Declarant availability immaterial

This includes adoptive admissions, silent admissions, and vicarious admissions

Question 11

Adoptive Admissions

Answer 11

A statement of another party that a party expressly or impliedly adopts as his own.

Question 12

Silent Admissions

Answer 12

Silence is considered an adoptive admission if:
1) the person understood the statement;
2) the person had the ability and opportunity to deny it; and
3) a reasonable person similarly situated would have denied the statement.

Question 13

Vicarious Admissions

Answer 13

Statement made by one person imputed to another based on the relationship between them

Question 14

Vicarious Admissions between Employer and Agent

Answer 14

A statement made by a party’s employee or agent constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship

Question 15

Reasons for Declarant Unavailability

Answer 15

1. Exempt on the grounds of privilege
2. Refuses to testify depsite a court order to do so;
3. Lacks memory of the subject matter of the statement;
4. Is unable to testify due to death, infirmity, or physical or mental disability;
5. Is absent and cannot be subpoenaed or otherwise made to be present

Question 16

Hearsay Exceptions

Answer 16

1. Former Testimony
2. Dying Declaration
3. Statement Against Interest
4. Present Sense Impression
5. Excited Utterance
6. Then-Existing State of Mind
7. Statement Made for Medical Diagnosis
8. Business Record
9. Public Record
10. Learned Treatise
11. Past Recollection Recorded

Question 17

Elements of Former Testimony

Hearsay Exception

Answer 17

1. Statement must have been made under oath;
2. Must deal with similar/identical issues;
3. Must ensure that the party against whom it’s offered had the opportunity to cross; AND
4. Declarant must be unavailable.

Question 18

Elements of Dying Declaration

Hearsay Exception

Answer 18

1. Must be a civil or homicde case;
2. The declarant must believe that their death is imminent;
3. The statement must pertain to the cause or circumstances of the death they believe to be imminent; AND
4. Declarant must be unavailable.

Question 19

Elements of Statement Against Interest

Hearsay Exception

Answer 19

1. Must be contrary to the declarant’s pecuniary, proprietary, or penal interests;
2. Would not have been made by a reasonable person unless he believed it to be true; and
3. Declarant must be unavailable.

NOTE: Be careful not to confuse statement against interest with an admission. If you are going between the two, admission > statement against interest.

Question 20

Present Sense Impression

Hearsay Exception

Answer 20

A statement made describing or explaining an event or condition that is made while or immediately after the declarant perceived it.

Question 21

Excited Utterance

Hearsay Exception

Answer 21

A statement made about a startling event or condition while the declarant is under the excitement that it caused.

NOTE: Declarant need not be a participant in the event

Question 22

Then-Existing State of Mind

Hearsay Exception

Answer 22

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition.
This includes a statement of present intent, motive, or plan and can be used to prove conduct in conformity with that state of mind

NOTE: When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at the time can be used to prove the existence of that condition, but not its cause.

Question 23

Statement Made for Medical Diagnosis

Hearsay Exception

Answer 23

A statement describing medical history or past or present symptoms made for the purpose of medical diagnosis or treatment.

NOTE: The statement need not be made to a physician or by the person seeking treatment

Question 24

Business Record

Hearsay Exception

Answer 24

A record of an act, condition, opinion, or diagnosis is not excluded as hearsay if:
1. The record was kept in the course of a regularly conducted activity of a business or organization;
2. The making of a record was a regular practice of that activity; AND
3. The record was made at or near the time by (or from information transmitted by) someone with knowledge.

NOTE: Be careful about records that contain the statements of others, as they often implicate double hearsay.

Question 25

Public Record | Hearsay Exception

Answer 25

A record or statement of a public office or agency that sets out: 1. The activities of the office or agency; 2. An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case by the prosecution); OR 3. Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.

Question 26

Learned Treatise | Hearsay Exception

Answer 26

A statement contained in a treatise, periodical, or pamphlet is substantively admissible where: 1. An expert witness relied on the statement during direct examination or it was called to the expert's attention on cross examination; AND 2. The publication is established as a reliable authority by admission of testimony of the expert, by another expert's testimony, or by judicial notice. ## Footnote NOTE: If admitted, the statement is read into evidence, but the publication itself is not received as an exhibit.

Question 27

Past Recollection Recorded | Hearsay Exception

Answer 27

1. The record is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; 2. The record was made or adopted by the witness when the matter was fresh in the witness's memory; AND 3. The record accurately reflects the witness's knowledge. ## Footnote NOTE: If admitted, the record may be read into evidence, but may be received as an exhibit only if offered by an adverse party.