Hearsay Flashcards
(36 cards)
When is it hearsay? Policy?
Hearsay is usually inadmissible. You will be tested on when evidence is hearsay.
You can tell if evidence is hearsay if you keep in mind why hearsay is inadmissible.
It is inadmissible because the speaker (“declarant”) cannot be cross-examined when she speaks out of court. Without cross-examination we cannot tell if declarant is lying or mistaken about the facts in her statement.
But this is a problem only if the evidence is used to prove those facts. That’s when it is hearsay.
When isn’t it hearsay?
If it is used to prove anything else, we do not need to cross-examine declarant, because it does not matter if declarant is lying or mistaken about facts we are not trying to prove.
This is when it is not hearsay.
Definition of Hearsay
Out of court statement offered to prove the truth of the matter asserted in that statement.
Statement
Statement = verbal or written expression of a person or
conduct by a person intended to communicate (called “assertive conduct”).
To prove defendant committed the robbery, a police officer testifies that a bloodhound trained to track a scent followed a trail from the crime scene and “pointed” at defendant. Statement?
No - dogs are not person
Prosecution for bank robbery. To prove defendant
committed the crime, a police officer testifies that, at a line-up of suspects, he asked the victim if the perpetrator was present and the victim pointed at the defendant. Statement?
Yes
To prove defendant committed the robbery, a traffic officer testifies that he arrested the defendant for speeding just after the bank robbery because, when he pointed his radar gun at the defendant’s car, the indicator on the gun
said, “vehicle is going 100 mph”. Statement?
No - not people
To prove defendant committed the robbery, a police officer testifies that a computer printout of police files stated, “defendant has three prior robbery convictions”. Statement?
yes - a person typed into memory of the comp
The tough part of the definition: Assuming an out of court statement, is it offered to prove the truth of the matter asserted? Three step approach:
- Find the statement,
- Ask what it is offered to prove, (Does the question tell you? If not, consider who offered the evidence and what it would relevant to prove in that party’s case. That is what the statement is offered to prove.)
- Given what it’s offered to prove, will jury be misled
if the out of court speaker was lying or mistaken?
If the answer is yes, it is hearsay.
If the answer is no, it is not hearsay.
Defendant denies entering into the contract. Plaintiff
offers the out-of-court statement of defendant’s secretary, who said “I saw the defendant sign the contract.” Hearsay? (Notice that, if the secretary was lying or mistaken, the jury would be misled.)
Yes
Circumstances where Statements are not Hearsay:
- Not hearsay because statement has independent legal significance
- Not hearsay because statement offered to show effect on listener
- Not hearsay because statement offered to show speaker’s (or writer’s) knowledge of facts stated
- Not hearsay because statement is circumstantial evidence of state of mind
To prove who committed the homicide, prosecutor asks a witness “what did you tell the police?” Witness says “I told them I saw the defendant bite the victim in the neck.”
Is it hearsay, despite the fact the out-of-court declarent is now an in court witness??
Hearsay even if out-of-court declarant is now in court witness
Exceptions & Exemptions to the hearsay rule Basics (not the exceptions/exemptions themselves)
Difference between Excemption and Exception to the Hearsay Rule
Even if the evidence is hearsay under the basic definition, it might still be admissible.
The FRE create exemptions to the usual definition of hearsay. Evidence falling within an exemption is admissible because it is not hearsay.
Even where the evidence is hearsay, the FRE also provide exceptions that makes the hearsay admissible. Here is what this all means:
On the MBE you need to distinguish between these two alternative answers: “hearsay but admissible” and
“admissible because not hearsay”. The former is correct answer for exceptions. The latter is correct answer for exemptions.
Hearsay within Hearsay
Multiple hearsay or hearsay within hearsay = each level must be within exception or exemption.
Exemptions to the Hearsay Rule:
All are not Hearsay under FRE:
- Opposing Party Statement (formerly Party Admission)
- distinguish from statement against interest exception
- Prior inconsistent statement given under oath at trial or deposion
- Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility
- statement of identification of a person made after
perceiving the person
These exemptions apply to an out of court
statement from a declarant who now testifies at trial:
- Prior inconsistent statement given under oath at trial or deposion
- Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive or to rebut another attack on credibility
- statement of identification of a person made after perceiving the person
Opposing Party Statement (formerly Party Admission)
- This is an exemption and, thus, not hearsay. Definition = statement by party, or by someone whose statement is attributable to a party, offered by a party opponent.
- Opposing party statement not subject to personal knowledge requirement or opinion rule.
- Distinguish opposing party statement from statements against interest exception
Vicarious opposing party statement
Statement by:
-
authorized spokesperson of party OR
- Authorization can be expressed or implied
- employee of party concerning matter within scope of employment and made during employment relationship.
Other vicarious opposing party statements:
- Adoptive opposing party statement (nonparty makes statement and party indicates belief in its truth) and
- Coconspirator statement (made during course and in furtherance of conspiracy).
All are not hearsay.
Exceptions to the Hearsay Rule (10)
- Statements/Declaration against interest
- distinguish from opposing party statement exemption
- Former testimony
- Dying declaration
- Excited utterance
- Present sense impression
- Declaration of then existing physical or mental condition
- Statement of past or present mental or physical condition made for medical diagnosis or treatment
- Business records
- Public records
- Judgment of previous conviction
Hearsay Exceptions requiring Unavailability:
- Former testimony exception
- Declaration against interest
- Dying declaration exception
Declarant is unavailable if:
- court exempts declarant from testifying due to
privilege, - declarant is dead or sick,
- proponent of statement cannot procure declarant’s attendance by process or other reasonable means,
- declarant refuses to testify despite court order, or
- declarant’s memory fails.
Specific Rules Regarding the Admissibility of Unavailable Witnesses:
- There must have been an Opportunity to examine
- There must be Similar motive to examine
- Deposition testimony is admissible because under oath and opportunity to examine
- Must be a Predecessor in interest
Former testimony exception
Testimony given by a person in earlier proceeding or deposition is admissible if
- the party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, OR
- in a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding (a “predecessor in interest”) and who had an opportunity and a similar motive to examine the witness in that earlier proceeding.
Declarent Must be Unavailable
Declaration against interest exception (and Distinguish opposing party statement)
Hearsay statement is admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability.
If the statement is offered to exculpate accused (i.e., by
showing someone else confessed to the crime), there must be corroborating evidence to admit the statement.
Declarant must be unavailable.
Distinguish opposing party statement. Opposing party statement is statement of party (or statement of another person attributed to a party) while a declaration against
interest can be made by anyone. Declaration against interest must be against interest when made. No such requirement for opposing party statement.
