Rule Statements: Hearsay, Authentication; Documents and Real Evidence

Hearsay basic definition

Hearsay is an out-of-court statement offered for the truth of the matter asserted

Nonhearsay Purposes

(1) effect on reader or listener; (2) declarant’s state of mind (knowledge or mental state); and (3) facts of independent legal significance (solicitation, words of defamation, words establishing a contract, etc).

Multiple Hearsay and Fact Triggers

Each level of hearsay must be admissible for the entire thing to be admissible. Examples include: (1) statements in police reports; (2) a work order including a mechanic’s observation; (3) a surgical report containing observations of medical personnel; and (4) a witness testifying what another person told him a third party said

Hearsay Exclusions

FRE only (they are exceptions in the CEC). Admissions generally are excluded, including: (1) party admissions; (2) adoptive admissions; (3) certain silent adoptive admissions; (4) vicarious admissions; and (5) co-conspirator admissions

Party Admission

A statement by another party is excluded from hearsay (or an exception in CEC) and may be offered against him. It need not be against his interest.

Adoptive Admissions

An adoptive statement is: (1) made by another; (2) where the party knows of its content; and (3) voluntarily manifests belief in the truth of the state by words or action.

Silent Adoptive Admissions

Silence an be an adoptive admission when a reasonable person would speak out to deny the allegation. 5th Amendment protections apply.

Vicarious Admissions

Can arise from: (1) explicit authorization (authorized spokesperson); or (2) from a statement by an employee or agent concerning a transaction within the scope of employment and during the existence of the relationship. CEC limits this to where the employee’s negligence is at issue

Co-conspirator Admissions

Statements made during the course of the conspiracy in furtherance of the conspiracy are admissible against all co-conspirators, but the Confrontation Clause applies.

Hearsay Exceptions

(1) party admission (CEC only); (2) medical diagnosis or treatment; (3) statement of present physical, emotional, or mental condition; (4) present-sense impression; (5) excited utterance; (6) prior statements of available witness; (7) past recollection recorded; (8) business record; (9) public record; (10) learned treatise and commercial publications; (11) Unavailable witness’s former testimony; (12) unavailable witness’s dying declaration; (13) unavailable witness’s declaration against interest; (14) forfeiture by wrongful procurement of unavailability; and (15) residual catch-all exception

Medical Diagnosis Statement Hearsay Exception

A statement made for the purpose of medical diagnosis or treatment is admissible, even if made by or about a third person. Statements of fault are not admissible but statements of cause are. CEC: statement of past or present physical condition is only admissible when made to obtain diagnosis or treatment if made by a child abuse victim

Statement of then-existing Physical, mental, or Emotional Condition

Admissible to show the condition or state of mind but statements of memory or belief are not admissible.

Present Sense Impression

Admissible if: (1) describing or explaining an event or condition; and (2) made while or immediately after perceiving the event or condition. CEC contemporaneous statement exception narrows this only to statements explaining the declarant’s own conduct made while the declarant is engaged in the conduct

Excited Utterance Exception

A statement is admissible if: (1) relating to a startling event or condition; and (2) made while the declarant is still under the stress of the excitement caused by the event or condition

Available Witness’s Prior Statements

Prior Inconsistent statement is substantively admissible if made (1) under oath and (2) subject to cross-examination. Prior consistent statement is only admissible substantively to rebut impeachment. A prior identification is substantively admissible if: (1) made after perceiving the person; and (2) the declarant is testifying at trial

Past Recollection Recorded Requirements

(1) witness cannot testify from memory; (2) present recollection refreshed fails; (3) document is written; (4) the document is firsthand knowledge of the witness; (5) the document was made when the events were fresh in memory; and (6) the record was accurate when made. If these requirements are met, the document is introduced (read to the jury) but not admitted

Business Records Exception

Admissible when the sponsoring witness establishes that the record was kept in the course of regularly conducted business activity. Business activity may include events, conditions, opinions (FRE only), or diagnoses (FRE only). Further requirements: (1) keeping the record is a regular practice; (2) the person making the report had firsthand knowledge or was made by someone with a duty to report; and (3) the record was made at or near the time of the matters referenced.

Public Records and Reports Exception

(1) an agency’s record of its own activities; (2) matters observed in the line of duty and under a duty to report; (3) investigative reports are admissible. However, FRE prohibits the use of police observations or reports in criminal cases

Learned Writing and Commercial Publication Exceptions

FRE: admissible if called to the attention of an expert witness and established as reliable authority. CEC: admissible only for facts of general notoriety and interest

Witness Unavailability

Unavailability can be the result of: (1) privilege from testifying; (2) death or illness; (3) reasonable means could not procure the witness; (4) witness refuses to testify (CEC: must be out of fear); or (5) witness is unable to remember (CEC requires total memory loss)

Unavailable Witness’s Former Testimony

Admissible if the part against whom it is offered had the opportunity at an earlier hearing or deposition to examine that person and similar motive to develop the testimony. FRE applies this to predecessors in interest in civil cases. CEC civil case rules are more complicated

Unavailable Witness’s Former Testimony CEC-only rules

CEC applies it in civil cases to: (1) anyone with a similar interest; (2) if it is offered against a party that offered the testimony on its own behalf; and (3) against a successor in interest of someone who offered the testimony on their own behalf. Deposition testimony given in the same civil action is admissible for all purpose if the deponent is unavailable or lives more than 150 miles away from the courthouse.

Dying Declaration of Unavailable Witness

A statement made by the declarant while believing his death was imminent, concerning the cause or circumstances of his death. FRE only: civil and criminal homicide cases, and the declarant need only be unavailable. CEC: applies in all civil and criminal cases but the declarant must be dead.

CEC OJ/Physical Abuse Exception

CEC permits admission of statements describing physical abuse made at or near the time of inquiry or threat, in writing, recorded, or made to police or medical professionals under trustworthy circumstances. Witness must be unavailable.

Declaration Against Interest by Unavailable Witness

A declaration against interest is admissible if, at the time it was made, it was against the declarant’s penal or pecuniary interest, or exposes the declarant to civil liability. FRE only: if offered to exculpate the accused, there must be corroborating evidence. CEC only: Also includes statements against social interest

Unavailable Witness: Forfeiture by Wrongdoing

A hearsay exception applies where a witness is (1) unavailable; (2) the party against whom the witness was going to testify procured the unavailability of the witness; (3) for the purpose of preventing the testimony.

Residual Catch-All Exception

An otherwise hearsay statement may be admissible if trustworthy, is regarding a material fact, is more probative on point than other evidence, and notice is given to the opposing party.

Authentication of Evidence

All evidence other than testimony must be authenticated as genuine. Authentication is proof that the evidence is what the proponent claims it is.

Types of Authentication

(1) real evidence; (2) demonstrative evidence; (3) writings; (4) ancient documents; (5) self-authenticating documents; and (6) recordings

Authenticating Real Evidence

Physical evidence can be authenticated by (1) its distinct characteristics; or (2) chain of custody

Authenticating Demonstrative Evidence

Can be authenticated by showing that the demonstration is a fair representation that accounts for specific circumstances

Authenticating Writings

Admissions, eyewitness testimony, handwriting verifications, reply letter doctrine, and other circumstantial evidence. Handwriting can be verified by: (1) expert; (2) nonexpert with personal knowledge; or (3) trier of fact with the help of sample comparisons

Reply letter doctrine

a writing can be authenticated through evidence showing it was written in response to a communication sent to the alleged author

Ancient Documents Authentication

Documents that are at least 20 years old (FRE) or 30 years old (CEC) may be authenticated by evidence that: (1) the document is in a condition that makes it free of suspicion of inauthenticity; and (2) it was found in a place where such a writing would be kept

Self-Authenticating Documents

(1) Certified copies of public records; (2) official publications; (3) newspapers; and (4) periodicals. FRE only: business records and trade inscriptions. CEC only: signature of notary or domestic public employee

Phone Call Authentication

Someone testifies: (1) they recognized the person’s voice; (2) the speaker had knowledge of specific facts that only the person would know; (3) they called the person’s number and the voice answered as that person; or (4) they called the person’s business and talked about business matters

Voice Recording Authentication

Can be identified by the opinion of anyone who has heard the person’s voice at any time, including after litigation has begun and for the sole purpose of testifying

Best Evidence (FRE)/Secondary Evidence (CEC) Rule

To prove the contents of a writing, the original must be produced. Machine duplicates are allowed unless the authenticity of the original is in dispute. If the original/photocopy is unavailable, oral testimony is allowed and the CEC allows handwritten copies.

Best Evidence/Secondary Evidence Exceptions

The rule does not apply when the fact to be proved exists independently of the writing (witness can testify from personal knowledge), where the writing is collateral, for voluminous records, and for public records

Summaries of Voluminous Records

If the original documents are so voluminous as to be impractical to admit into evidence, a summary such as a table or chart may be introduced through a sponsoring witness. The proponent must produce the originals upon request.

Presumptions

Presumptions only exist in civil cases. They operate to shift the burden of producing evidence to the other party. They include presumptions of mail delivery, legitimacy, sanity, presumption against suicide, and more.

Excuses for Failure to Produce Original Best/Secondary Evidence

(1) loss or destruction, unless in bad faith; (2) cannot be obtained through normal judicial process; and (3) in possession of adversary who, after reasonable notice, fails to comply

Judicial Notice

Process of establishing facts without presenting evidence. The facts must not be subject to reasonable dispute. They are either: (1) generally known within the jurisdiction; or (2) capable of accurate and ready determination by a source whose accuracy cannot be questioned

FRE Effect of Judicial Notice

A party must request judicial notice in order to compel judicial notice, but the court has discretion if not requested. In Civil cases, the jury must accept the judicially noticed fact. In Criminal cases, the jury may accept the judicially noticed fact

CEC Effect of Judicial Notice

Whether requested or not, the court must take judicial notice of matters generally known within the Jx. The CEC does not distinguish between civil and criminal judicial notice.

Preliminary Facts Decided by the Jury

Facts concerning the relevance of evidence, such as: (1) authenticity of evidence; (2) whether a party was acting as an agent in a contract case; and (3) whether a witness has personal knowledge of the facts of their testimony. A judge screens all preliminary determinations to see if there is sufficient proof to support a jury finding that the fact exists.

Preliminary Facts Determined by Judge

Competency (admissibility) of the evidence. The judge may consider extrinsic facts and non-admissible facts. Everything except for privileged information is fair game. Testimony by the accused on the preliminary matter does not waive the privilege against self-incrimination

Rule of Completeness

When part or all of a statement is introduced into evidence, the adverse party may require the proponent to introduce any other part or related statement that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

Confrontation Clause

In otherwise admissible statement will be excluded under the Confrontation Clause where: (1) the statement is being offered against the accused in a criminal case; (2) the declarant is unavailable; (3) the statement was testimonial in nature; and (4) the accused had no opportunity to cross-examine

Confrontation Clause Testimonial Evidence to Law Enforcement

Statements to LEOs are non-testimonial if the primary purpose is to aid in an ongoing emergency. Factors include: (1) the nature of the dispute (public or private); (2) whether the perpetrator is still at large; (3) the scope of the threat to the victim and the public; and (4) the type of weapon involved. Statements provided to aid in later prosecution are testimonial, as are affidavits and reports of law enforcement and forensic officers.