Hearsay and Circumstances of its Admissibility Flashcards
(18 cards)
Definition of Hearsay
What is Hearsay?
Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted – it is testimony that is given by a witness who tells not what he or she knows personally, but what others have said which is therefore dependent on the credibility of someone other than the witness. Hearsay evidence can be in the form of oral assertions, written assertions, or nonverbal conduct, if offered to prove the truth of the matter asserted. Accordingly, hearsay evidence is generally inadmissible because the person who made the statement is not called as a witness at trial, so the party against whom the statement is offered has no opportunity to cross-examine the declarant or to impeach his credibility.
Definition of Hearsay: Prior Statements by Trial Witness
Prior Inconsistent Statements Under Oath
A prior inconsistent statement under oath is let in for impeachment and for its truth. It must have been made under oath at a formal trial, hearing, or deposition and the declarant is at trial subject to cross-examination concerning the statement. If it was not made under oath, it is simply a prior inconsistent statement that is admissible for impeachment only.
WITNESS DECLARANT MUST BE TESTIFYING AT TRIAL AND SUBJECT TO CROSS.
Definition of Hearsay: Prior Statements by Witness
Prior Consistent Statements
Prior consistent statements are used to rebut a charge of recent fabrication/improper motive. Again, the declarant must be testifying at trial and subejct to cross-examination for this to apply.
WITNESS DECLARANT MUST BE TESTIFYING AT TRIAL AND SUBJECT TO CROSS.
“After a witnesses’ character for truthfulness has been attacked, the opposing party may then rehabilitate the witness by regarding the witnesses’ good character for truthfulness through reputation or opinion testimony. The testimony must be reputation or opinion only (specific instances are not allowed), and only regarding the witnesses’ character for veracity (cannot be about character generally) and such testimony about the witnesses’ good character for truthfulness is not admissible until the witnesses’ character has been attacked.”
Definition of Hearsay: Prior Statements by Witness
Prior Statement of Identification
When a witness at trial has identified someone in the past, but cannot remember who on the stand, the court will want the first, more reliable statement of identification. So if there is an earlier identification out-of-court and the witness is available at trial for cross in court and cannot remember, the earlier identification is admissible as non-hearsay.
WITNESS DECLARANT MUST BE TESTIFYING AT TRIAL AND SUBJECT TO CROSS.
Prior statements of identification are prior out-of-court identifications based on lineups, mug book photo arrays, sketches, photographs, etc. that are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-examination.
Definition of Hearsay: Prior Statements by Witness
Opposing Party Admissions
If a party says something, it can be used against them without a hearsay issue. This rule inlcudes: any statement made by the opposing party that is offered against that party, adoptive admissions (through silence or conduct), agent/employee statements made by the agent/employee offered against the principal during the existence of the relationship and concerning a matter within the scope of the agency/employment, and statements made by co-conspirators made during the course of or in furtherance of the conspiracy.
Definition of Hearsay
Multiple Hearsay
When there is hearsay within hearsay, such as a police report with quotes from witnesses in it, each indiviudal hearsay must satisfy a hearsay exception for them both to get in. If only one hearsay falls within an exception, then neither of them can get in.
Present Sense Impressions and Excited Utternaces
Present Sense Impressions
A present sense impression is a statement describing or explaining an event as it is happening or immediately thereafter.
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
Present Sense Impressions and Excited Utternaces
Excited Utterances
An excited utternace is a statement made while under the stress of a startling event. Reliability-based exceptions, such as an excited utterance, do not require the unavailability of the declarant because such statements are considered reliable or more reliable that any in-court testimony that the declarant could give.
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
Statements of Mental, Physical, or Physical Condition
Statements of Mental, Physical, or Physical Condition
A statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) is admissible as an exception to the hearsay rule if offered to prove the declarant’s then-existing condition or his future action. Such statements are admissible provided they are not offered to prove the truth of the matter asserted, but rather, only that the declarant believed them to be true (to prove knowledge).
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
Statements for Purposes of Medical Diagnosis and Treatment
Statements for Purposes of Medical Diagnosis and Treatment
Statements by a declarant about past or present symptoms or the cause(s) to get diagnosed or treated will get in as a hearsay exception. These statements do not need to be to treating physicians or treating medical personnel only; the rule allows for statements made to expert witnesses who have a dual purpose of providing a diagnosis and testifying for you at trial.
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
Past Recollection Recorded
Past Recollection Recorded
If a witness has insufficient recollection of the event, but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can vouch for the accuracy of the statement when made or adopted, it may come in as a hearsay exception.
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
Business Records
Business Records
A record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business will get in as a hearsay exception. If the record itself records a statement of someone who is not actually speaking in the course of business, then it needs an independent hearsay exception.
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
A police report in a civil case indicating that an accident occurred, citing the parties involved, and noting other aspects of the accident observable by the investigating officer, comes within the business records exception.
Public Records and Reports
Public Records and Reports
Under the public records exception to the hearsay rule, records are admissible if the report was made to a public office pursuant to requirements of law, so long as the source of information and other circumstances do not indicate a lack of trustworthiness. This exception covers reports containing matters observed by law-enforcement personnel and factual findings from a legally authorized investigation. However, this exception specifically exempts statements by law enforcement personnel or to factual findings from a legally authorized investigation, when offered in a criminal case.
DECLARANT MAY BE UNAVAILABLE OR AVAILABLE.
Learned Treatises
Learned Treatises
Statements that are contained in published treatises or books or periodicals on the topic of medicine, science, history, physics, arts, etc. are able to be admitted through this hearsay exception. You must establish the authority of the treatise and authenticate it, either on direct examination of your own expert, where the expert must recognize the treatise and say they relied on it to authenticate it, or get the treatise in through judicial notice, or call your own expert to testify that the treatise is reasonably relied upon in the field.
Former Testimony; Depositions
Former Testimony; Depositions
Under the FRE, the former testimony exception to the hearsay rule allows former testimony of a witness in one proceeding involving the same issue and same parties to be admissible in a second proceeding, provided that there is a meaningful opportunity to cross-examine or to develop the testimony since it was given live in the first proceeding and the declarant is unavailable to testify in the second proceeding. Former testimony is admissible if the party against whom the testimony is now offered was under oath and had the opportunity and similar motive to develop testimony by direct, cross, or redirect examination of the declarant. Testimony given at a deposition is admissible as former testimony if the deponent is unavailale or the rule of Civil Procedure authorizing the deposition does not require that the deponent be unavailable.
DECLARANT MUST BE UNAVAILABLE THROUGH (PRISM): Privilege, Refusal to Testify, Illness or Death, Somewhere Else (not in the jurisdiction), Memory Lacking.
Statements Against Interest
Statements Against Interest
The FRE allows for the admission of hearsay if it is a statement against interest made by an unavailable declarant. Under the FRE, a statement made by an unavailable out-of-court declarant is admissible if at the time it was made it was contrary to the declarant’s pecuniary or proprietary interest or would likely subject him to criminal or tort liability or would likely render invalid a claim which he might possess. The statement must be that which a reasonable person in the same position would not have made unless it was true and the declarant must be unavaiable, he must have had personal knowledge, and the statement must have been against his interest when made.
DECLARANT MUST BE UNAVAILABLE THROUGH (PRISM): Privilege, Refusal to Testify, Illness or Death, Somewhere Else (not in the jurisdiction), Memory Lacking.
Other Exceptions to the Hearsay Rule
Other Exceptions to the Hearsay Rule
Other exceptions are dying declarations (declarant is unavailable, the statement was made while be believed death was impending, it concerns the causes or circumstances of death, and can be used in a homicide or civil case). Other exceptions are statements within documents over 20 years old, statetments of personal or family history, records of vital statisics, prior felony convictions, etc.
Right to Confront Witnesses (Confrontation Clause)
Right to Confront Witnesses (Confrontation Clause)
Even when an out-of-court statement falls within a hearsay exception, the Confrontation Clause of the 6th Amendment will sometimes preclude the admission of the statement at trial. The 6th Amnd. gives defendants the right to confront witnesses against them. The use of an out-of-court statement by the prosecutor violates this right if the statement was testimonial, the witness who made the statement is unavailable to testify at trial, and the defendant has not had an opportunity to cross-examine the witness before trial. The accused has the right to object to the witness and their testimony while in their physical presence, and a witness may also be given the opportunity to identify the defendant.
