Hearsay

Question 1

Hearsay Definition

Answer 1

(1) Out of court
(2) Statement
(3) Offered to prove
(4) The truth of the Matter Asserted

Question 2

Hearsay Rule

Answer 2

Hearsay is inadmissible unless an exception or exclusion applies.

Question 3

Rationale for hearsay rule

Answer 3

Hearsay is unreliable because: - The declarant misperceived it. - The declarant may misremember the situation. - The declarant may be lying. - The person testifying in court may misremember the statement, misheard it or is lying about it.

Thus, the law makes it necessary for the declarant herself to testify in court so that the jury can evaluate sincerity, and whether they have misperceived or misremembered the situation.

Question 4

The first three categories of non-hearsay

(not used to prove the truth of the matter asserted)

Answer 4

(1) Verbal Act: Legally operative words
(2) Effect on Person who Heard or Read Statement
(3) Circumstantial Evidence of Speaker’s State of Mind

Question 5

(1) Verbal Act: Legally Operative words

Answer 5

Rationale: It is not offered for the truth of the matter asserted - only that it was said or done. You are basically trying to prove an element of the claim so therefore, it is not hearsay.

Example - defamation, contract formation, solicitation of crime, bribery, or to show something like sexual harassment - e.g. coworker says “you look better without a skirt on” - offered to prove harassment not the truth of the matter(!), a gift was made, perjury, fruad.

Question 6

(2) Effect on Person who Heard or Read Statement

(notice)

Answer 6

Rationale: It is not being offered for the truth - It is being offered, usually to show that a person

(1) had notice of a fact - a customer slips. 1hr before a witness overhead someone tell manager that floor was slippery. Statement is admissible because used to show notice not that the floor was slippery.

Question 7

(2) Effect on Person who Heard of Read Statement

(Intent/motive)

Answer 7

Rationale: It is not being offered for the truth - It is being offered, usually to show that a person

(2) to dispute intent/motive - daughter on trial for elder abuse for not given proper medication to mother. Daughter introduces doctor’s note that said NOT to give medicaiton. Note not being offered for truth of matter but to show the effect the note had on the daughter.

Question 8

(3) Circumstantial Evidence of Speaker’s State of Mind

Answer 8

Rationale: It is not being offered for the truth of the matter asserted so it is not hearsay.

Example - introducing that a criminal said “God told me to kill him” to show insanity (not the truth of the matter).

Question 9

The next two categories are used to prove the truth of the matter asserted

Answer 9

(4) Prior Statements of a Trial Witness

(1) Witness’s prior Statement of identificaiton of a person
(2) Witness’s prior inconsistent statement
(3) Witness’s prior consistent statement

(5) Party Admissions

(1) statement made by opposing party)
(2) adoptive admission
(3) Agent/Employee statements
(4) Coconspirator

Question 10

(4) Prior Statement of a Trial Witness
(a) Witness’s prior statement of identification of a person

Answer 10

Rationale: In-Court Identifications are not as reliable as identifications made under less suggestive circumstances.

Question 11

(4) Prior Statements of a Trial Witness
(b) Witness’s prior inconsistent statement

Answer 11

Rationale: To eliminate perjury

(1) statement made under oath at a formal trial, hearing or deposition
(2) is inconsistent
(3) declarant is testifying at trial or hearing and is subject to cross concerning the statement.

these statements can be used for substantive evidence and impeachment.

Question 12

(4) Prior Statement of a Trial Witness
(c) Witness’s prior consistent statement

Answer 12

Rationale: It is used to rehabilitate the witness but also to prove that the statement is true since if the same statement was made pre-motive, the witness is less likely to be lying

(1) statement is consistent and
(2) used to rebut charge of recent fabrication of improper motive/influence

Question 13

(5) Party Admissions. Four Kinds

FOUR KINDS

Answer 13

(1) Statement made by opposing party if offered against party
(2) Adoptive admissions: If party remains silent under circumstances in which a reasonable person would protest if the statement were false
(3) Agent/Employee statements
(4) Statements by coconspiracy

Question 14

(2) Adoptive Admissions

Answer 14

If party remains silent under circumstances in which a reasonable person would protest if the statement were false. Must show that the person:

(1) heard and understood the statement
(2) was physically/mentally capable of responding; and
(3) a reasonable person would have denied statement

example - “you hit the lady over the head” a reasonable person would deny that statement.

Question 15

Declarant must be unavailable for these 5 Hearsay exceptions

Answer 15

(1) Forfeiture by Wrongdoing (witness tampering)
(2) Former Testimony
(3) Statement Against Interest
(4) Dying Declaration
(5) Statement of Personal or Family History

Question 16

(3) Agent/Employee Statements are admissible if:

Answer 16

(1) made by agent/employee
(2) Offered against principal/employer
(3) made during the existence of the agency/employment relationship (not necessarily while the person was at work).
(4) concerns a matter within the scope of agency/employment

Question 17

(4) statement by coconspirator

Answer 17

admissible if made during th course of and infurtherance of the conspiracy. Wouldn’t generally apply after the conspirators are caught because it is not made in the course of/in furtherance of the crime.

Question 18

Determining Unavailability

Answer 18

(1) States claim for Privilege
(2) Absence from jurisdiction
(3) Illness or death
(4) Lack of memory
(5) Stubborn refusal to testify

Question 19

(1) Forfeiture by Wrong doing

(witness tampering)

Answer 19

Rationale: Defendant cannot complain about hearsay if his conduct led to the witness being unavailable

(1) Declarant unavailable
(2) if court finds by a Preponderance of the evidence that defendant’s conduct was specifically designed to prevent the witness from testifying
(3) Defendant “forfeits” both the hearsay objection and 6th Amendment objection

Question 20

(2) Former Testimony

Answer 20

Rationale: Both an oath and the opportunity to cross-examine were already present at some point.

(1) Declarant unavailable
(2) Declarant had given testimony at a former proceeding or deposition
(3) Statement is admissible against a party (or someone in privity) who, on a prior occasion
(4) Had opportunity and motive to develop the testimony of the witness. issues w/burden both the same.

Question 21

(3) Statement Against Interest

Answer 21

Rationale: Declarant is not likely to say something against her interest unless it is true.

(1) Declarant unvailable
(2) Against declarant’s pecuniary, proprietary or penal interest
(3) Against interest when made
(4) Declarant may be non-party

Question 22

Dying Declaration

Answer 22

Rationale: Declarant is unlikely to lie about the cause/circumstances of her death if she truly believes that she is dying.

(1) Declarant unavailable (but does not have to be dead)
(2) Used in homicide or civil cases
(3) Statement made while believed death was impending
(4) Statement concerns cause or circumstances of death

Question 23

(5) Statement of Personal or Family History

Answer 23

Rationale: Declarant is likely to know his family history

(a) The declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts or personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(b) Another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated w/the person’s family that the declarant’s information is likely to be accurate.

Question 24

Sixth Amendment Confrontation Clause

The right to confron Witnesses who testify against you

Answer 24

(1) If statement is TUN testimonial - a statement is testimonial if the primary purpose of the questioning is to establish or prove past events potentially relevant to criminal prosecution.
(2) Declarant is unavailable; and
(3) Defendant had no opportunity for cross-examination (either before or at trial)

even it falls w/in hearsay exception it will not be admitted.

Question 25

Declarant may be _Available_ or _Unvailable_ for the Following Exceptions:

Answer 25

(1) Present Sense Impression (2) Excited Utterance (3) Then-Existing Mental, Emotional, or Physical Condition (4) Statement made for Purpose of Medical Treatment of Diagnosis (5) Past Recollection Recorded (6) Business Records (7) Public Records (8) Learned Treatises (9) Residual "Catch All" Exception

Question 26

(1) Present Sense Impression

Answer 26

Rationale: The declarant is less likely to lie or misremember if the event is happening while he describes or explains it (1) Declarant describes or explains event (2) While the event is occurring or immediately thereafter.

Question 27

(2) Excited Utterance

Answer 27

Rationale: The declarant is less likely to lie while under the stress of excitement (1) Sufficiently startling event. (2) Statement made while declarant is under stress of excitement. (3) Statement relates to startling event * consider nature of event, passage of time, exclamation points!*

Question 28

(3) Then-Existing Mental, Emotional, or Physical Condition

Answer 28

Rationale: Declarant is less likely to lie or misremember if the condition occurs while he describes or explains it. (This is how your think, feel, your intent) (1) Contemporaneous _statement_ concerning present state of mind, feelings, emotions; or (2) Current physical condition; or said to someone. must be current condition. same as present sense impression. (3) Intent to do something in the future "I plan to go to FL" not "I went to FL" It shows: intent, action, someone else's action

Question 29

(4) Statement for Purpose of Medical Treatment or Diagnosis

Answer 29

Rationale: Declarant has a motive to be truthful when seeking medical attention (1) statement made to anyone (usually medical personnel but not necessarily) (2) Concerning past/present symptoms or cause of condition (3) for a purpose of diagnosis/treatment MICHIGAN - does not recongize exception when statement made by doctor paid to testify.

Question 30

(5) Past Recollection Recorded

Answer 30

(1) _Insufficient recollection:_ showing writing to witness fails to jog memory. (2) Witness had _personal knowledge_ at a former time. (3) Writing was either _made by witness or adopted_ by witness; (4) Making or adoption occurred while the event was _fresh_ in the witness's memory; (5) Witness can vouch for _accuracy_ of writing when made or adopted. If admitted, it may be read into evidence. not received as exhibit.

Question 31

(6) Business Records

Answer 31

Rationale: Businesses have incentives to keep accurate records. (1) Records of business of _any type_ (2) Made in _regular course of business_ (3) Made at or about time of event recorded (4) Personal knowledge: contains consists of information observed by employees of business or statements that falls within an independent hearsay exception. Witness need not be the author of the report.

Question 32

(7) Public Records

Answer 32

Rationale: A public official will perform his duty properly (a) Records of a public office or agency setting forth (1) The activities of the office or agency; or (2) Matters observed pursuant to a duty imposed by law (excluding matters observed by police officers and other law enforcement peronnel in criminal cases); or (3) In civil cases and proceedings against the government in criminal cases, factual findings resulting from an investigation authorized by law (OSHA insepection report) are allowed in unless sources or circumstances indicate they are untrustworthy. MICHIGAN - does not includee item (3)

Question 33

(8) Learned Treatises

Answer 33

(1) if reliable (2) It may be read in as substantive evidence if expert is on stand (and to impeach if used on cross examination) May not be introduced as an exhibit MICHIGAN - One may use a learned treatise only on cross-examination of opponent's expert and only for the purpose of impeachment - not as substantive evidence. It is not a hearsay exception.

Question 34

(9) Residual "Catch All" Exception

Answer 34

Rationale: The statement is trustworthy (a) A statement that is not otherwise covered by a hearsay exception is nevertheless still allowed into evidence if: (1) It is trustworthy (2) It is offered as evidence of a material fact (3) The judge ultimately decides it will serve the interest of justice; and (4) Notice is given to the opposing party.

Question 35

(10) Some other Hearsay Exceptions

Answer 35

(a) Reputation concerning character (b) judgment of previous conviction for FY offered against the def if: it was entered after a trial or PG (not NC), it is admitted to prove any fact essential to the judgment. (c) A statement in a document that is at least 20 yrs old and whose authenticity is established. (d) Proving familial relations: ie record of birth, marriage, death.

Question 36

Animal or Machine Statements

Answer 36

In order for a statement to be hearsay, it must be made by a human. The following are not considered to be hearsay: time or temperature displays, an alarm clock ringing, a dog barking or the actions of a drug-sniffing dog, etc.

Question 37

Michigan-Specific Hearsay Exceptions (1) Statements by Domestic Violence Victims

Answer 37

(a) Criminal case involving domestic violence - a spouse, former spouse, person with whom the def resides or has resided; person with whom def has a child in common, or person w/whom def has or had a dating relationship with. (b) A statement (i) Made w/in 5yrs of the filing of the current case (ii) by the victim to a law enforcement officer (iii) describing the def's infliction or threatened infliction of physical injury (iv) made at or near the time of the infliction or threat of physical injury; and (v) the circumstances indicate the statement's trustworthiness. Remember potential 6th amendment issues

Question 38

Michigan-Specific Hearsay Exceptions (2) Corroborative Statements by Child Victims of Sexual Acts

Answer 38

(a) Criminal case involving a sexual act directed at a child (b) A statement made (i) Spontaneously (ii) immediately after the incident (or any delay is based on fear) (iii) Describing the sexual act (iv) The child was under 10 at the time the statement was made, and (v) The statement corroborates the child's in-court testimony. (c) The proponent of the statement must give notice to the adverse party of intent to offer the statement as well as the particulars of the statement. No 6th amend issues because child is required to give live testimony.