Federal Rules of Evidence: The Hearsay Rule and Exceptions

Comprehensive flashcards covering the definition of hearsay, non-hearsay categories, unavailability-dependent exceptions, and availability-immaterial exceptions according to the Federal Rules of Evidence and Mississippi Distinctions.

Hearsay

A statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.

Fed. R. Evid. 801(c)

The specific Federal Rule of Evidence that defines hearsay.

Fed. R. Evid. 802

The rule stating that hearsay is inadmissible unless an exception applies.

Declarant

The person who actually made the out-of-court statement.

Opportunity to Cross-Examine

The primary reason for excluding hearsay, as the adverse party cannot test the declarant's perception, memory, sincerity, or ability to relate.

Perception

One of the four factors tested during cross-examination, referring to how well a declarant observed the event.

Memory

One of the four factors tested during cross-examination, referring to whether the declarant really remembered the details related.

Sincerity

One of the four factors tested during cross-examination, referring to whether the declarant was deliberately falsifying a statement.

Ability to Relate

One of the four factors tested during cross-examination, referring to whether the declarant meant to say what appears to be the thrust of the statement.

Contemporaneous Cross-Examination

The requirement that a witness-declarant be cross-examined as to their state of mind at the time the statement was made, even if the person is the same witness on the stand.

Statement (Under Hearsay Rule)

A person’s oral or written assertion, or nonverbal conduct intended as an assertion.

Fed. R. Evid. 801(a)

The Federal Rule of Evidence that defines what constitutes a 'statement'.

Assertive Conduct

Nonverbal conduct intended by the actor to be a substitute for words, such as a nod of the head.

Morgan Hearsay

A traditional common law term for nonassertive conduct treated as hearsay.

Nonassertive Conduct

Conduct the declarant did not intend as an assertion; under modern codes and Federal Rules, this is not considered hearsay.

Examples of Nonassertive Conduct

A sea captain embarking on a ship with his family or a doctor treating a person for plague.

Truth of the Matter Asserted

The purpose for which an out-of-court statement is offered that makes it hearsay; if offered for any other purpose, it is not hearsay.

Verbal Acts

Utterances to which the law attaches legal significance, such as words of contract, defamation, or bribery; also called 'legally operative facts'.

Legally Operative Facts

Statements such as offer, acceptance, or words of gift where the issue is simply whether the statements were made.

Effect on Listener or Reader

A nonhearsay use of a statement to show notice, knowledge, or motive, rather than to prove the statement's truth.

Circumstantial Evidence of State of Mind

Statements not offered for their truth but to show the declarant believed them, such as 'I am John the Baptist' to prove insanity.

Nonhuman Declarations

Data generated electronically (radar, clocks) or animal behavior (drug-sniffing dogs), which do not constitute hearsay.

Drug-Sniffing Dog Reliability

The condition under which a witness may testify to a dog's actions, requiring a foundation showing proper training.

Hearsay by Assertive Conduct Example

A child nodding their head in response to a police officer's question about a perpetrator.

Hearsay Within Hearsay

An out-of-court statement that incorporates other hearsay; both layers must fall within an exception to be admissible.

Fed. R. Evid. 805

The rule governing the admissibility of hearsay within hearsay.

Hearsay Exclusions (Exemptions)

Certain statements defined by Federal Rule 801(d) as 'not hearsay,' admissible as substantive evidence.

Prior Inconsistent Statement

A witness's earlier statement that conflicts with their testimony, made under penalty of perjury at a prior proceeding or deposition.

Fed. R. Evid. 801(d)(1)(A)

The rule identifying prior inconsistent statements made under oath as nonhearsay.

Prior Consistent Statement

A statement used to rebut a charge of recent motive to lie or to rehabilitate an impeached witness, if made before the motive arose.

Tome v. United States

The Supreme Court case establishing that a prior consistent statement must be made before the onset of the alleged motive to lie.

Prior Statement of Identification

A witness's statement identifying a person they perceived earlier; it is nonhearsay under Fed. R. Evid. 801(d)(1)(C).

United States v. Owens

The case holding that a prior identification is nonhearsay even if the witness currently lacks memory of its basis.

Admissions by Party-Opponent

The traditional term for statements by or attributable to an opposing party under Fed. R. Evid. 801(d)(2).

Opposing Party Statement

Any statement made by a party and offered against that party; it is excluded from the hearsay definition.

Personal Knowledge in Admissions

Not required for an opposing party's statement; it can even be predicated on hearsay.

Formal Judicial Statement

Statements in pleadings, stipulations, or responses to requests to admit that are conclusive in the proceeding where they are made.

Extrajudicial Statement

Informal statements or evidentiary admissions that are not conclusive and can be explained by the party.

Fed. R. Evid. 410

The rule stating that a withdrawn plea of guilty is not admissible against a defendant in any subsequent proceeding.

Adoptive Statement

A statement of another that a party expressly or impliedly adopts as their own.

Silence as Adoptive Statement

Occurs when a party fails to respond to an accusatory statement that a reasonable person would have denied.

Vicarious Statement

A declarant's statement attributable to a party because of a specific relationship such as agency or conspiracy.

Co-Parties Relationship

The joining of parties in an action is insufficient on its own to make the statement of one receivable against the other.

Authorized Spokesperson

A person authorized by a party to speak on their behalf; their statements are admissible against the party under Rule 801(d)(2)(C).

Agents and Employees Rule

Statements concerning matters within the scope of agency/employment, made during the relationship, are admissible against the principal.

Partnership Hearsay Rule

A statement of one partner related to partnership business is binding on co-partners as each is deemed an agent of the others.

Co-Conspirator Statement

A statement made by one conspirator to a third party in furtherance of a conspiracy while the declarant was participating.

Bourjaily v. U.S.

The case establishing the preponderance of the evidence standard for determining the existence of a conspiracy for hearsay purposes.

Predecessors-in-Interest

Persons from whom a party has derived title or a claim; their statements may be admissible against the successor.

Joint Tenants Mississippi Rule

In state courts, statements of each joint owner are often admissible against the other, unlike under the Federal Rules.

Preliminary Determination of Agency

The court must consider the contents of the statement itself, but the statement alone is insufficient to establish the agency relationship.

Declarant Unavailable Exceptions

Five hearsay exceptions grouped under Fed. R. Evid. 804 that require the declarant to be unable to testify.

Privilege-based Unavailability

A declarant is unavailable if exempted from testifying because a court rules that a legal privilege applies.

Refusal to Testify

A ground for unavailability where a witness refuses to testify despite a court order.

Lack of Memory

A declarant who testifies to not remembering the subject matter is considered unavailable.

Death or Illness

Grounds for unavailability where a declarant cannot testify due to death or physical/mental illness.

Beyond Subpoena Reach

A ground for unavailability where the proponent cannot procure the declarant's attendance by process or reasonable means.

Mississippi Child Unavailability

A child is unavailable if their health would be substantially impaired by testifying in the presence of the accused.

Former Testimony Exception

Testimony given at a trial, hearing, or deposition if there is sufficient similarity of parties and issues for meaningful cross-examination.

Identity of Parties (Former Testimony)

Requirement that the party against whom testimony is offered (or a predecessor in civil cases) was a party in the former action.

Similarity of Motive

The requirement that the party had an opportunity and similar interest to develop the testimony at the prior hearing.

Grand Jury Testimony Exclusion

Former testimony that is not admissible against the accused at trial because there was no opportunity for cross-examination.

Right of Confrontation (Criminal Former Testimony)

Satisfied if the accused or attorney had the opportunity to cross-examine and the witness is genuinely unavailable.

Barber v. Page

A case holding that a witness in an out-of-state prison is not 'unavailable' without a showing that the prosecution tried to produce him.

Statement Against Interest

A statement by an unavailable declarant that was against their pecuniary, proprietary, or penal interest when made.

Fed. R. Evid. 804(b)(3)

The Federal Rule governing statements against interest.

Penal Interest Corroboration

In criminal cases, statements against penal interest must have circumstances indicating trustworthiness to be admissible.

Williamson v. United States

The case ruling that the 'statement' against interest exception covers only specific self-inculpatory remarks, not entire narratives.

Dying Declaration

A statement by an unavailable declarant who believed death was imminent, concerning the cause or circumstances of that impending death.

Civil vs. Homicide (Dying Declaration)

Under the Federal Rules, dying declarations are admissible in civil actions and homicide prosecutions.

Firsthand Knowledge (Dying Declaration)

Mandatory requirement that the declarant's statement be based on personal perception, not unsupported speculation.

Statement of Family History

Hearsay concerning birth, marriage, or death, made by a family member or someone intimately associated with the family.

Pedigree Exception associations

Allowed declarants include family members by blood/marriage, and others like the family doctor under modern rules.

Forfeiture by Wrongdoing

Statements offered against a party who intentionally procured the declarant's unavailability through wrongdoing.

Fed. R. Evid. 804(b)(6)

The rule defining forfeiture by wrongdoing as a hearsay exception.

Excited Utterance

A statement made under the stress of excitement caused by a startling event, relating to that event.

Time Element (Excited Utterance)

The factor used to determine if the declaration was made before the declarant had time to reflect or fabricate.

Present Sense Impression

A statement describing an event or condition made while or immediately after the declarant perceives it.

Present Sense Impression Safeguards

Reliability stems from lack of memory defects and limited time for calculated misstatement.

Present State of Mind Exception

Statement of declarant's then-existing intent, plan, motive, or emotional/physical condition.

Hillmon Case Doctrine

A declaration of intent to do something in the future is admitted as circumstantial evidence that the intent was carried out.

Exclusion of Memory or Belief

General rule that statements of memory or belief are not admissible to prove the fact remembered, except regarding a will.

Present Bodily Condition

Statements of current physical symptoms or pain, admissible even if not made to a physician.

Fed. R. Evid. 803(4)

The rule for statements made for medical diagnosis or treatment.

Medical Treatment Exception

Admissibility of medical history and symptoms if reasonably pertinent to diagnosis or treatment.

Mississippi Medical Exception Distinctions

Adds requirement for circumstances indicating trustworthiness and specifies 'medical' includes emotional and mental health.

Identity of Abuser in Child Abuse

Often admitted as pertinent to medical treatment because it affects treating psychological injuries.

Testifying Physician Rule

Rule 803(4) permits statements made to a doctor even if they were employed solely to testify in the case.

Business Records Exception

Writing or record of an act or event made in the regular course of business at or near the time of the event.

Fed. R. Evid. 803(6)

The primary Federal Rule for records of a regularly conducted activity.

Hospital Records Admissibility

Admissible as business records to the extent they relate to medical diagnosis or treatment.

Police Reports as Business Records

Generally not admissible against a criminal defendant, though often used in civil cases.

Palmer v. Hoffman

Case holding that accident reports prepared primarily for litigation are not admissible business records.

Entrant's Duty

Requirement that the person making the business record had a duty to do so as part of their employment.

Johnson v. Lutz

Case holding that a business record is inadmissible if the informant was an outsider with no business duty to report accurately.

Self-Authenticating Business Records

Records certified in writing by a custodian to meet criteria, provided reasonable notice is given to the adverse party.

Fed. R. Evid. 803(7)

The rule allowing business records to prove the nonoccurrence of a matter.

Recorded Recollection

A hearsay exception for a memorandum made when an event was fresh if the witness now has insufficient memory.

Public Records Exception

Admissibility of records of public offices setting forth activities, legal duties, or authorized factual findings.

Fed. R. Evid. 803(8)

The Federal Rule governing public records and reports.