Hearsay Rules Flashcards
FRE 801 Definitions
The following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
FRE 802 Hearsay Admissibility
Hearsay is not admissible unless any of the following provides otherwise:
- a federal statute;
- these rules; or
- other rules prescribed by the Supreme Court.
Statement “a Party Offers in Evidence to Prove the Truth of the Matter Asserted”
- Determine the purpose for which the proponent has offered the statement.
a. Which party is offering the statement and how is that statement relevant to that party’s case? - Determine the first inference in the chain of reasoning that leads from the statement to the conclusion
a. First Inference Rule: A statement a party offers in evidence “to prove the truth of the matter asserted” only if the first inference from the statement must be true in order for the statement to prove the factual conclusion the party wishes to prove.
a statement is hearsay if the matter it asserts has to be true in order for the evidence to be relevant.
Hearsay Analysis
- What is the out of court statement?
- What is asserted by the out of court statement
- Is the statement being offered to prove the truth of the matter asserted
a. NOTE: Answering the last inquiry will be helped by using the RELEVANCY analysis
b. Who is offering the statement?
What is NOT hearsay?
Words of Independent Legal Significance” or “Verbal Acts”
Value of the Evidence Derives from the Fact That Words Were Spoken
Words Are Being Offered to Show Their Effect on the Listener
Words or Conduct Constitute Circumstantial Evidence of the Declarant’s State of Mind
Words or Conduct Are Not Assertive or Are Assertive of Something Other Than What They Are Offered to Prove
Statements Offered Against a Party (“Admissions”)
Statements a Party Adopts as True (“Adoptions”)
Vicarious Statements
Co-conspirator Statements
Prior Statements of a Witness
Availability of Declarant Immaterial
Unavailability of Declarant Required
Residual Exception
Statements Offered Against a Party (“Admissions”)
o FRE 801(d)(2)
If a party has made a statement, the party’s opponent is entitled to offer that statement into evidence to prove the truth of anything relevant, including the matter asserted.
A statement is NOT hearsay if the statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true (NO PK REQUIRED)
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s co-conspirator during and in furtherance of the conspiracy.
o FRE 106
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
Statements a Party Adopts as True (“Adoptions”)
o FRE 801(d)(2)(B)
Consider whether the party “appeared to adopt or accept” the truth of a statement made by another person. Usually this is “manifested” by what the party says about the statement. But sometimes the party’s silence can adopt a statement.
Vicarious Statements
o FRE 801(d)(2)(C) &(D)
(d)(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.
Authorize: Authorized to speak on behalf of someone else (e.g. agent and principle, employee and employer)
- Treated as an exemption under the federal rule
- Can be expressed or implied
Co-conspirator Statements
o FRE 801(d)(2)(E)
Prior Statements of a Witness
o FRE 801(d)(1)
o CEC §1220
o Statements of Prior Identification
o Prior Inconsistent Statements
- Substantive Use
• FRE 801(d)(1)(A)
Impeachment Use
• FRE 613
FRE 806 (non-testifying declarants)
o Prior Inconsistent Statements (CA)
CEC §768
CEC §770
CEC §1235
CEC §1202Exceptions v. Exemptions
Hearsay exclusion applies to evidence that meets all three of the requirements for hearsay but, for policy reasons, is defined to be non-hearsay. If the evidence falls within a hearsay exclusion, then it is treated as not hearsay and can be admitted to prove the truth of its contents. FRE 801(d).
Evidence falls within a hearsay exception if it meets the three requirements of hearsay but is nevertheless admitted under an exception created in either FRE 803 or 804.
Exceptions to the hearsay rule are found in Rule 803, 804, and 807.
- Exceptions come into play only if the utterance or conduct qualifies as hearsay under Rule 810(c)
- If it does, you must determine whether the utterance or conduct falls into one or more of the many categories covered by the exceptions.
- If so, it will not be excluded by Rule 802.
Exemptions from the hearsay rule are found in Rule 810(d).
- If an utterance or conduct falls into one of the categories contained in that rule, the utterance or conduct is not hearsay even though, analytically, it satisfies the definition of hearsay found in Rule 801(c). Thus, there is no need to consult the exceptions in Rules 803, 804, and 807 to determine whether the evidence is excluded by the hearsay rule.
