Evidence Law: Hearsay and the Confrontation Clause

Comprehensive vocabulary flashcards covering the Federal Rules of Evidence (FRE) regarding hearsay, its exclusions, exceptions, and Constitutional limitations under the Confrontation Clause.

Hearsay [FRE 801(c)]

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.

Exclusion Rule [FRE 802]

If a statement is hearsay and no exception applies, it must be excluded upon appropriate objection of admission.

Statement [FRE 801(a)]

A person’s oral/written assertion or non-verbal conduct intended as an assertion.

Made Outside of This Court Proceeding

The 'out of court' element meaning the statement was not made by the declarant at the current trial or hearing.

Offered to Prove the Truth of the Matter Asserted

A criteria where an out-of-court statement is hearsay only if offered to prove the truth of what the statement asserts.

Hearsay Exclusions Rationale

Based on the adverse party being denied the opportunity to cross-examine the declarant at the time the statement was made.

Oral Assertion

A spoken statement that can qualify as hearsay.

Writings (Hearsay)

Any written document offered into evidence is considered a statement for hearsay purposes.

Assertive Conduct

Conduct intended to be a substitute for words, which counts as a statement for hearsay.

Non-Assertive Conduct

Conduct that is not intended as an assertion and is therefore not hearsay.

Asserted

A signal to the world; a requirement for a statement to qualify for truth-of-the-matter analysis.

Non-Truth Purpose

If offered for a purpose other than its truth, an out-of-court statement is not hearsay.

Verbal Acts / Legally Operative Facts

Utterances to which there is legal significance, such as words of contract, defamation, bribery, or permission.

Statements Offered to Show Effect on Listener

Non-hearsay statements admitted to show notice or subsequent action, such as for notice in a negligence case.

Circumstantial Evidence of Declarant’s SOM

Out-of-court statements offered not for truth but to show declarant believed them true (e.g., evidence of insanity or knowledge).

Terrific Witness Trio

Statements by a person who testifies at trial and is subject to cross about the statements, making them not hearsay under certain conditions.

Subject to Cross

When a witness is placed on the stand, under oath, and responds willingly to questions.

Prior Inconsistent Statement [FRE 801(d)(1)(A)]

A witness's past statement inconsistent with current testimony, made under oath at a trial, hearing, or deposition.

Grand Jury Testimony (PIS)

Admissible not only to impeach but also as substantive evidence if inconsistent with in-court testimony.

PIS + Extrinsic Evidence (Relevant)

Extrinsic evidence of a PIS is admissible to impeach only if the statement is relevant and not merely collateral.

PIS Foundation Requirements

The witness must be given an opportunity to explain or deny the statement and the adverse party must be able to examine them about it.

Prior Consistent Statement [FRE 801(d)(1)(B)]

A statement made before an alleged motive to lie arose, used to rebut charges of fabrication or rehabilitate credibility.

Tome v. US

Case establishing that a prior consistent statement must have been made before the onset of the alleged motive to lie or exaggerate.

Rehabilitate After Impeachment on Non-Character Ground

Admitting a consistent statement to fix credibility after an attack on grounds like sensory deficiency or inconsistency.

Prior Statement of Prior Identification [FRE 801(d)(1)(C)]

A witness’s prior statement identifying a person as someone they perceived earlier; counts as non-hearsay.

US v. Owens

Ruling that a prior identification is not hearsay even if the witness currently lacks memory and cannot testify to the basis of the identification.

Photo Identifications

These are included within the scope of admissible prior statements of identification.

Unavailable Declarant Impeachment [FRE 806]

The credibility of an unavailable declarant may be attacked by evidence that would be admissible if they had testified.

Opposing Party Statements

A statement made by an opposing party and offered against that party is not hearsay.

Personal Knowledge (Party Admissions)

Personal knowledge is not required for a statement to be admitted as an opposing party statement.

Formal Judicial Admissions

Binding and conclusive statements made within legal filings such as pleadings, RFA responses, or stipulations.

Informal Judicial Statements

Statements like testimony that are usable against the party but are not automatically binding and may be explained.

Extra-Judicial Statements

Non-binding evidentiary statements made outside of court, such as prior remarks or out-of-court conversations.

Adoptive Statements [FRE 801(d)(2)(B)]

Situations where a party expresses or implies adoption of another person's statement.

Silence as Adoption

Silence qualifies if the party understood the statement, was capable of denying it, and a reasonable person would have denied it.

Failure to Respond to Police Accusations

This is almost never admissible as an adoptive admission.

FRE 410

Provides that a withdrawn guilty plea is inadmissible.

Vicarious Statements [FRE 801(d)(2)]

Statements treated as an opposing party’s statement based on a relationship rather than authorship.

Authorized Spokesperson [FRE 801(d)(2)(C)]

A statement made by a person authorized by a party to speak on its behalf, such as a company press agent.

Partners Rule

A statement by one partner regarding matters within the scope of partnership business is binding on other partners.

Agents/Employees [FRE 801(d)(2)(D)]

Admissible if the declarant was an employee, the statement concerns a matter within the scope of employment, and was made during that relationship.

Co-conspirators [FRE 801(d)(2)(E)]

Statements made by a participant during and in furtherance of a conspiracy are admissible against co-conspirators.

Predecessors in Interest

Statements of a predecessor in interest (e.g., decedent, assignor) are admissible against the successor.

Co-Parties Rule

Co-party status alone is not a valid vicarious relationship for admitting hearsay.

Joint Tenants Limit

Joint tenancy is not recognized under the Federal Rules as a vicarious admission relationship.

Standard for Relationship Existence

The court uses a preponderance of the evidence standard ($P > 0.5$) to decide if an agency or conspiracy relationship existed.

Bourjaily v US

Establishing that while the court may consider the contested statement to prove a relationship, the statement alone is insufficient.

US v. Inadi

Established that unavailability is not required for an opposing party statement or vicarious opposing party statement to be admitted.

Grounds for Unavailability [FRE 804(a)]

Includes incapacity (death/illness), memory loss, privilege, refusal to testify, and absence beyond subpoena power.

Procurement of Unavailability

A declarant is not 'unavailable' if their absence was wrongfully caused by the proponent to prevent testifying.

Former Testimony [FRE 804(b)(1)]

Admissible if the declarant is unavailable and the testimony was given under oath at a prior proceeding where the party had motive to cross-examine.

Identity of Parties (Former Testimony)

Satisfied in civil cases if offered against the same party or a predecessor in interest.

Identity of Subject Matter (Former Testimony)

The same subject matter is required for former testimony, though the cause of action need not be identical.

Barber v. Page

Case emphasizing that a greater showing of unavailability is required in criminal cases regarding former testimony.

Statements Against Interest [FRE 804(b)(3)]

Admissible if against pecuniary, proprietary, or penal interest such that a reasonable person would only say it if true.

Corroborating Circumstances (SAI)

Requirement in criminal cases that statements against penal interest must have circumstances indicating trustworthiness.

Chambers v. MS

States that excluding third-party confessions against penal interest may deprive the accused of a fair trial under due process.

Disaggregation Principal

The exception for statements against interest only covers specific remarks that inculpate the declarant, not the entire conversation.

Dying Declarations [FRE 804(b)(2)]

Admissible in homicide or civil cases if made while the declarant believed death was imminent and concerned its cause.

Personal/Family History [FRE 804(b)(4)]

Admissible statements about pedigree or marriage by an unavailable declarant who is a family member or intimately associated.

Forfeiture by Wrongdoing [FRE 804(b)(6)]

Admitting hearsay against a party who wrongfully caused the declarant's unavailability with the intent to prevent testimony.

Nimble Immaterial 9

A mnemonic for the nine common hearsay exceptions where the declarant’s availability is immaterial.

Present Sense Impression [FRE 803(1)]

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

Excited Utterances [FRE 803(2)]

A declaration relating to a startling event made while the declarant was under the stress of excitement.

Present State of Mind [FRE 803(3)]

Admissible if describing declarant's then-existing motive, intent, plan, emotion, or sensation.

Future Intent/Plan (SOM)

A statement of present intent to do something in the future is admissible to show the declarant later acted consistently with that intent.

Memory/Belief Limit (SOM)

A statement of memory or belief is not admissible to prove the truth of the fact remembered or believed.

Current Physical Condition

A declarant's statement about their current pain or symptoms is admissible even if made to non-medical personnel.

Medical Diagnosis or Treatment [FRE 803(4)]

Covers statements describing medical history, past/present symptoms, or general cause if reasonably pertinent to treatment.

General Cause vs. Fault

Under the medical exception, general cause is admissible, but specific fault details (e.g., 'driver ran red light') are inadmissible.

Child Abuse Victims (Identity)

Courts may admit the identity of an abuser under the medical exception if critical to treating psychological injuries.

Litigation-Related Physician

Under the FRE, there is no automatic exclusion of statements made to a doctor employed specifically to testify.

Mississippi Medical Distinction

MS requires circumstances substantially indicating trustworthiness; 'medical' includes emotional and mental health.

Recorded Recollection [FRE 803(5)]

A record made or adopted by a witness when the matter was fresh, used when the witness now lacks sufficient memory.

Effect of Admission (803(5))

If admitted, the record may be read into evidence, but is only received as an exhibit if offered by the adverse party.

Refreshing Memory [FRE 612]

Using a writing to revive a witness's memory; the writing itself is not hearsay and the witness testifies from present memory.

Adverse Party Rights (FRE 612)

Includes the right to have a memory-refreshing writing produced, to inspect it, and to cross-examine the witness about it.

Records of Regularly Conducted Activity [FRE 803(6)]

Also known as the Business Records exception; requires the record be kept in the regular course of business.

Palmer v. Hoffman

Held that records prepared primarily in anticipation of litigation may fail the Business Records exception.

Business Record Entrant Duty

The person making the entry must have a public or private business duty to make or transmit the information.

Hospital Records (Hearsay)

Qualify as Business Records only to the extent they relate to medical diagnosis or treatment.

Police Records (Civil)

May qualify as Business Records in civil cases but are generally inadmissible against a criminal defendant.

Johnson v. Lutz

Rule stating that if an informant is an outsider with no business duty to report, the statement is excluded unless another exception applies.

Two Phase Admissibility Principle

Phase 1: the business record proves the statement was made; Phase 2: another exception proves the truth of the assertion.

Authentication of Business Records

Can be established by a custodian, qualified witness, or through self-authentication under [FRE 902(11)].

Sponsoring Witness Personal Knowledge

The custodian or qualified witness does not need personal knowledge of the specific facts recorded in a business record.

Trustworthiness Limitation (803(6))

The court may exclude a business record if the opponent shows circumstances indicating a lack of trustworthiness.

Absence of Business Record [FRE 803(7)]

Evidence that a matter is not included in business records may prove its non-occurrence if such matters were regularly recorded.

Residual Catch-All Exception [FRE 807]

A general exception for hearsay not covered by specific rules, requiring trustworthiness, necessity, and notice.

Notice Requirement (Residual Exception)

The proponent must give written notice before trial, including the substance of the statement and the declarant's name.

Good Cause (Notice Exception)

Courts may excuse lack of earlier notice if a witness suddenly becomes unavailable during trial.

Double Hearsay

An out-of-court statement that incorporates other hearsay; admissible only if both levels fall within an exception.

Confrontation Clause

Sixth Amendment requirement that hearsay will not be admitted against the accused if it is 'testimonial' and there was no prior cross-examination.

Crawford v. WA

The landmark case establishing that testimonial hearsay requires declarant unavailability and a prior opportunity for cross-examination.

Testimonial Statement

A statement made with the primary purpose of establishing or proving past events potentially relevant to a later criminal prosecution.

Ongoing Emergency Rule

Statements made to enable police to help in an ongoing emergency are 'non-testimonial' and do not violate the Confrontation Clause.

Michigan v. Bryant

Case discussing indicators of an ongoing emergency, such as whether the perpetrator is at large and the type of weapon involved.

Primary Purpose Test

Objective evaluation of circumstances to determine if a statement's goal was emergency aid or producing evidence for prosecution.

Davis v. WA

Differentiates between emergency calls (non-testimonial) and police interrogations about past events (testimonial).

Ohio v. Clark

Held that a child's statement to a teacher regarding abuse is generally non-testimonial as the purpose is child protection.