Hearsay Flashcards
(36 cards)
What is hearsay?
Hearsay is an out of court statement offered for the truth of the matter asserted.
• Statement
• Made out of court
• Offered for the truth of the matter asserted.
○ Key question is what is the proponent trying to prove by offering the statement into evidence.
○ If trying to prove that the out-of-court statement is true, then the statement is hearsay because secondhand reports are inherently unreliable and we have no way of testing the accuracy and truth of the out-of-court statement.
What is the rule if a party is using an out of court statement as part of the witness’s knowledge?
Not hearsay.
The witness can testify from firsthand knowledge about the fact that the statement was made, as well as about who made the statement, its exact wording, and any other relevant details.
What are the four questions to ask to determine whether something is hearsay (hearsay four)?
1) Is the witness referring to a statement that occurred outside the courtroom?
2) Are you sure it’s a statement?
3) Is a party offering the statement to prove the truth of the matter asserted?
4) Does an exception apply?
What is a statement?
a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
• Assertion - any action undertaken by the declarant that is intended to communicate a fact.
• Conduct can make an assertion and is considered a statement if the declarant intended to communicate a fact through her conduct.
What is the difference between assertive conduct and non-assertive conduct?
To tell the difference, ask: Do we need to assess the actor’s sincerity in order to rely upon the conduct?
○ If yes, the conduct contains an assertion and the hearsay rule applies.
○ If no, the actor was not trying to assert any fact, and the jury is free to draw any reasonable inference from the reported conduct.
(would a reasonable person intend the action to be an assertion?)
E.g. - You are asked if it is raining outside and you shake out your wet umbrella in response. This is an assertive action and would fall under the hearsay rule. If you walk inside and shake out your umbrella to get the water off before putting it away, this is a nonassertive statement and will not follow under the hearsay rule. The second action will be allowed to allow the jury to make any reasonable inference from the conduct.
What is the rule regarding electronic media and hearsay?
Electronic media almost always contain statements, and they cannot be entered to assert the truth of the matter asserted. They can be used to show that a certain person said a particular thing or had a certain knowledge.
Media that is unlikely to contain a statement: photos, videos, websites without words.
Can automated machine information contain a statement?
Automated machine information is not a statement (e.g., alarm going off because a sensor was tripped is not a statement. However, if someone intentionally presses the button that sounds an alarm (like a bank teller) this is a statement, and would be hearsay).
Would a restaurant receipt be a statement?
Is a restaurant receipt a statement? A machine printing out the time or date is an automated process and this is not a statement. However, the server name and items served would be a statement because a human (the server) input that information, making an assertion that the people ordered those items.
Machines can convey a human assertion which will then qualify as a statement. Judge will look at whether the information incorporates a human assertion.
What are the four categories of hearsay Exceptions?
Rule 801(d) - "Not" hearsay Rule 804 - Declarant not available Rule 803 - Apply whether the declarant is available or unavailable. Applies when submitted for the truth of the matter asserted. Rule 807 - residual exception
What three types of declarant witness’s prior statements are considered “not hearsay”?
Under this rule (801(d), the declarant must testify and be subject to cross examination for a prior statement.
- Statements that are inconsistent with the witness’s courtroom testimony
- Statements that are consistent with that testimony
- Pretrial identification of a person - prior statement was identification of a person.
When is a declarant witness’s prior statement that is inconsistent with the witness’s courtroom testimony allowed?
Prior statement must be
1) inconsistent with the witness’s current testimony,
2) made under the penalty of perjury, and
3) occurred at a deposition, trial, hearing, or other proceeding.
- Sworn statement to a police officer does not meet this criteria (is not a proceeding).
- Inconsistent includes when the witness makes a prior statement and then refuses to say anything, or claims memory loss, at trial.
- Memory loss, whether real or feigned, will still meet the criteria requiring cross-examination.
When are statement’s that are consistent with witness’s courtroom testimony allowed?
Admissible only if 1) the witness’s credibility has been attacked and 2) prior statement helps rehabilitate that credibility.
If other party shows that the witness had a motive to lie (e.g., cut a deal to testify), then the prior statement must be before the witness developed the motive to lie.
If witness made a statement to police, then committed a crime for which she was offered a deal, then testified before a grand jury, only the statement to police can be offered.
What is a present sense impression?
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
• E.g. - Baseball announcer is describing the play by play action; “It’s a swing and a miss.”
• Must only describe the facts of the event. The declarant’s analysis or interpretation of the event would not fall under this exception. E.g. - Baseball announcer states “he is the fastest person in the league”;
• Rational - accuracy (not relying on memory), sincerity (no time to make up a lie)
What is an excited utterance and when is it allowed?
A statement relating to a startling event or condition, made while the declarant was under the stress of the excitement it caused.
• Subjective standard - declarant must speak while excited by some event ( Some people get excited over different things). Statement must be related to that event.
• May occur longer after an event (than present sense impression) if the speaker is still excited.
Can include analysis.
What is a “then-existing Mental, Emotional, or Physical Condition” and when can it be included as an exception to hearsay?
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or, emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarants will.
Only the part of the statement referring to the internal condition, and not external events that led to the condition, are admissible under this rule. E.g. - “I missed breakfast. I’m hungry.” Only “I’m hungry” is admissible.
What are you trying to prove? If trying to prove an event in the past, then 803(3) will not apply. However, can use to show the declarant believed that event occurred.
When is a Statement made for medical Diagnosis or Treatment allowed under a hearsay exception?
A statement that is made for – and is reasonably pertinent to – medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Does not go towards blame. If the declarant says “John threw me to the floor”, this would not be admissible because it blames a certain person. The statement must be relevant to the medical care.
Statements not limited to the injured party. Family member who brings the person to the hospital and speaks to the doctor could also fall under this exception.
What is a recorded recollection and when is it allowed as an exception to hearsay?
• Six foundation elements:
○ Record
○ Witness made or adopted that record
○ Witness once had personal knowledge
○ Witness made or adopted that record when that knowledge was fresh
○ Witness testifies that info was accurate
○ Witness has forgotten
• Witness must be available and testifying for this exception to apply.
• Can use something written by a third party to refresh the witness’s memory, if the witness adopts it as true. Document does not have to be prepared by the witness.
What are “records of a regularly conducted activity” and when are they allowed?
• Business and records.
• Qualified witness or certification to lay foundation
○ Record was made by a person with knowledge,
○ At or near the time,
○ In the course of a regularly conducted activity, and
○ It was the business’s regular practice to make a record.
- Rationale - businesses have strong self interest in keeping accurate records, especially for regularly conducted activities.
- Statement must come from someone within the organization, unless the statement from an outside party falls under another exception.
When are public records admitted as an exception to hearsay?
1) Make sure you have a public record.
2) Must satisfy 803(8), not just 803(6)
3) Records of the office’s activities are generally admissible.
4) Observations pursuant to duty are generally admissible.
5) Except matters observed by law enforcement personnel are not admissible against criminal defendant. (biased (Police have an incentive to ensure convictions) and 6th Amendment concerns (right to face accuser))
6) Unless the observation was ministerial.
7) Results of an investigation by any public office are not admissible against a criminal defendant.
8) “Factual findings” resulting from an investigation including opinions and conclusions.
9) Records are not admissible if they lack trustworthiness
10) Statements by third parties require a separate hearsay exception.
What are the five types of unavailability for a witness?
1) Privilege
2) Refusal to Testify
3) Lack of Memory
4) Death or Illness
5) Cannot be Found or Brought to Court
Rule 804
When is former testimony allowed under Rule 804?
- Declarant is unavailable
- Prior statement was given at a trial, hearing, or deposition,
- Opponent [or predecessor in interest for a civil trial] had opportunity to develop testimony
- Opponent had similar motive to develop testimony
When is a dying declaration allowed?
- Declarant is unavailable
- Applies only to homicide prosecutions and civil proceedings
- Declarant must believe death is imminent
- Statement is made about its cause or circumstances.
Declarant does not have to actually die (for a civil case), must subjectively believe that death is imminent.
When is a statement against interest allowed?
• Declarant unavailable
• Statement was against the declarant’s interest
• At the time it was made
• Corroboration for statements against penal interest when offered in criminal case
○ Corroborating circumstances must clearly indicate the statement’s trustworthiness.
What are the three types of interest of a declarant?
- Pecuniary or propriety interest
- Civil or criminal liability
- Render invalid a claim
Types of statements that no reasonable person would have made unless it were true.
