Time to lock in

FRE 801(c) — Definition of 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

Three elements you must confirm for hearsay

(1) It is a "statement"; (2) made outside the current trial/hearing; (3) offered to prove the truth of the matter asserted

What is a "statement" under FRE 801(a)?

An oral or written assertion, OR nonverbal conduct intended as an assertion (assertive conduct)

Assertive conduct — example and rule

Nodding "yes" in response to a question = intended as an assertion = IS a statement = can be hearsay

Nonassertive conduct — rule under FRE

Conduct NOT intended as an assertion is NOT a statement and therefore NOT hearsay under the FRE; the actor did not mean to assert anything

Nonassertive conduct — classic example

Sea captain who embarks on a ship with his family after inspecting it; his conduct (not intended as assertion) is offered to show he believed the ship was seaworthy; NOT hearsay under FRE

Machine/animal output — hearsay or not?

NOT hearsay; clocks, radar, drug-sniffing dogs, electronic data do not make "statements"; raises foundation/reliability issues, not hearsay objections

Effect on listener/reader — hearsay or not?

NOT hearsay; statement is offered to show its impact on the listener (notice, motive, knowledge), not to prove its contents are true

Effect on listener — example

"Your tire is about to burst" offered to show defendant had notice of a dangerous condition; NOT hearsay (not offered to prove tire was actually defective)

Verbal act / legally operative words — rule

NOT hearsay; words to which the law attaches legal significance (offer, acceptance, defamatory words, words of bribery); offered to show the words were said, not that they are true

Verbal act — example

In a defamation case, "X is a thief" is offered to show the actionable statement was made, not to prove X is actually a thief; NOT hearsay

Circumstantial evidence of declarant's state of mind — rule

NOT hearsay; statement offered to show what the declarant believed, not to prove the truth of what was said

Circumstantial state of mind — example

"I am John the Baptist" offered to show declarant's insanity, not to prove he actually was John the Baptist; NOT hearsay

Impeachment use — hearsay or not?

NOT hearsay when offered solely to cast doubt on a witness's credibility, not to prove the truth of the prior statement

When does a prior inconsistent statement become hearsay?

When it is offered to prove the truth of what was said in the prior statement, not just to impeach the witness's credibility

What is the correct structure for a Part A answer?

(1) State the FRE 801(c) definition; (2) confirm whether it is a "statement"; (3) ask whether it is offered for truth; (4) note any competing nonhearsay use; (5) state likely outcome

Key phrase: "offered to prove the truth of the matter asserted"

This is the most critical element — if the statement is offered for ANY other purpose, it is not hearsay

Difference between an exemption and an exception

Exemption (FRE 801(d)): statement is defined as NOT hearsay at all — stronger argument. Exception (FRE 803/804): statement IS hearsay but is admitted anyway because of special reliability

FRE 801(d)(1) — general rule

Prior statements by a witness who testifies at trial and is subject to cross-examination about the statement are not hearsay

FRE 801(d)(1)(A) — Prior Inconsistent Statement

Not hearsay if made under penalty of perjury at a prior trial, hearing, or deposition; admissible as SUBSTANTIVE evidence (not just impeachment)

801(d)(1)(A) — what proceedings qualify?

Prior trial, hearing, or deposition taken in accordance with law; grand jury testimony qualifies; informal prior statements do NOT qualify under this subsection

FRE 801(d)(1)(B) — Prior Consistent Statement

Not hearsay if offered to (1) rebut charge of fabrication based on improper motive — statement must PREDATE the alleged motive; OR (2) rehabilitate on a non-character ground (e.g., alleged inconsistency or sensory deficiency)

801(d)(1)(B) — also admissible as what?

Also admissible as SUBSTANTIVE evidence of the truth of its contents when qualifying under this rule

FRE 801(d)(1)(C) — Prior Statement of Identification

Not hearsay; witness's prior statement identifying a person as someone they perceived earlier; admissible as substantive evidence of identity

801(d)(1)(C) — three key features to memorize

(1) Need not have been made under oath or at formal proceeding; (2) admissible even if witness now lacks memory or expresses uncertainty (Owens); (3) includes photo identifications

United States v. Owens — rule

Cross-examination right under 801(d)(1)(C) is satisfied even if the witness's memory is now impaired or the witness cannot recall the basis for the identification

FRE 801(d)(2) — Opposing Party's Statement (OPS)

Any statement made by an opposing party, offered against that party, is not hearsay; party cannot complain about lack of cross-examination of himself

OPS — must it have been against interest when made?

NO — unlike statement against interest (804(b)(3)), an OPS need not have been against interest when made; it may even be in the form of an opinion

OPS — personal knowledge required?

NO — lack of personal knowledge does not disqualify an OPS (e.g., "My company investigated and reports indicate we were negligent")

FRE 801(d)(2)(A) — Party's Own Statement

The party's own out-of-court statement offered against that party; the simplest form of OPS

FRE 801(d)(2)(B) — Adoptive Statement

Party expressly or impliedly adopted another's statement as their own; silence can be an implied adoption under certain conditions

Silence as adoptive statement — three requirements

(1) Party heard and understood the statement; (2) party was physically and mentally capable of denying it; (3) a reasonable person would have denied it under the circumstances

Silence as adoptive statement — criminal case warning

Failure to reply to police accusations in a criminal case can ALMOST NEVER be used as an implied admission; Miranda concerns apply

FRE 801(d)(2)(C) — Authorized Spokesperson

Statement by a person authorized by the party to speak on their behalf is admissible against the party (e.g., press agent, official spokesperson)

FRE 801(d)(2)(D) — Agent/Employee Statement

Statement by agent or employee concerning any matter within the scope of agency/employment, made during the relationship, admissible against the principal; NO authorization to speak required

801(d)(2)(D) — classic example

Truck driver-employee admits negligence after an accident; statement admissible against employer even though driver was not authorized to speak for the company

FRE 801(d)(2)(E) — Co-Conspirator Statement

Statement of one conspirator made to a third party IN FURTHERANCE of the conspiracy, while declarant was participating, admissible against co-conspirators

Co-conspirator statement — standard of proof

Existence of conspiracy and participation of declarant and party must be shown by PREPONDERANCE OF THE EVIDENCE; court must consider the statement itself plus other evidence; statement alone is not sufficient

Co-conspirator statement — must government show declarant unavailable?

NO — government need not demonstrate unavailability of nontestifying co-conspirator (United States v. Inadi)

FRE 803 — general principle

These exceptions apply regardless of whether the declarant is available or unavailable; the circumstances of making the statement provide sufficient reliability

FRE 803(1) — Present Sense Impression

Statement describing or explaining an event or condition, made WHILE or IMMEDIATELY AFTER the declarant perceives it; no excitement required

Present sense impression vs. excited utterance — key difference

PSI: requires immediacy, no excitement needed. EU: requires a startling event and stress of excitement, but slightly more time may be permitted

FRE 803(2) — Excited Utterance

Statement made during or soon after a STARTLING event, while the declarant is under the STRESS OF EXCITEMENT produced by that event; must RELATE to the startling occurrence

Excited utterance — most important factor

TIME — the declaration must have been made before the declarant had time to reflect; if made while event is still in progress, clearly qualifies; declarations shortly after may be excluded as mere narrative

FRE 803(3) — Present State of Mind

Declarant's then-existing mental, emotional, physical condition, or intent; admissible to prove state of mind directly in issue OR to show declarant's subsequent acts (Hillmon doctrine)

Hillmon doctrine

Under FRE 803(3), a declaration of PRESENT INTENT to do a future act is admissible as circumstantial evidence that the declarant carried out that intent (Mutual Life Insurance Co. v. Hillmon)

803(3) — what is NOT admissible under this exception?

Statements of MEMORY OR BELIEF offered to prove the remembered fact ("I think I left the keys in the car" is NOT admissible to prove keys were left in car); EXCEPTION: statements about validity/terms of declarant's will

Hillmon limitation — third parties

FRE 803(3) can prove the DECLARANT's own subsequent conduct; it cannot be used to prove the subsequent acts of a THIRD PARTY

FRE 803(4) — Statement for Medical Diagnosis or Treatment

Statements of medical history, past or present symptoms, their inception or general cause; must be made FOR and REASONABLY PERTINENT to diagnosis or treatment

803(4) — does declarant need to be the patient?

NO — statements by family members or bystanders may qualify as long as clearly made to obtain diagnosis/treatment for the patient

803(4) — does statement need to be made to a physician?

NO — statements to ambulance drivers, hospital staff, even family members qualify if made for and pertinent to medical diagnosis or treatment

803(4) — what statements about cause are admissible?

"I was hit by a truck" — likely admissible. "The blue truck ran the red light" — NOT admissible; assigns fault, not pertinent to treatment. Identity of abuser in child abuse cases may be admissible because relevant to psychological treatment

803(4) — does FRE allow statements to doctor hired to testify?

YES — contrary to majority state view, FRE 803(4) permits statements made to a doctor employed to testify in the case

FRE 803(5) — Recorded Recollection

Record admissible (read into evidence) when: (1) witness once had personal knowledge; (2) record made or adopted by witness; (3) timely made when matter was fresh; (4) accurately reflected knowledge; (5) witness now has insufficient recollection

803(5) — is the document received as an exhibit?

NO — the record is READ INTO EVIDENCE but NOT received as an exhibit unless offered by the ADVERSE PARTY

FRE 803(6) — Business Records

Writing/record made in regular course of any business/organization/occupation (for-profit or not); customary to make such entries; entrant had duty to record; made at or near time of event; personal knowledge of entrant OR business-duty informant; authenticated by custodian or certification

Business records — can they be excluded?

YES — court may exclude if opponent shows source of information or method/circumstances of preparation indicate LACK OF TRUSTWORTHINESS

Johnson v. Lutz problem

If the informant is an OUTSIDER with no business duty to report accurately, the entry is NOT admissible under 803(6) for truth of the outsider's statement; another exception must be found

Palmer v. Hoffman problem

Records prepared primarily IN ANTICIPATION OF LITIGATION are not admissible as business records; FRE gives court discretion to exclude if opponent shows lack of trustworthiness

FRE 803(7) — Absence of Business Record

Admissible to prove the NONOCCURRENCE or NONEXISTENCE of a matter, if it was the regular practice of the business to record all such matters

FRE 803(8) — Public Records

Records of public office/agency admissible for: (a) activities of the office; (b) matters observed under legal duty — EXCLUDING police observations offered against criminal defendant; (c) in civil cases and against government in criminal cases: factual findings from authorized investigations, including opinions and conclusions

803(8) — key limitation in criminal cases

Police observations and evaluations in reports are NOT admissible under 803(8) against a criminal defendant; may be admissible in civil cases

FRE 803(10) — Absence of Public Record

Testimony or certification of diligent search failing to find a record; admissible to prove matter was not recorded or did not occur; in criminal cases, prosecutor must give defendant 14 days' written notice before trial

FRE 803(16) — Ancient Documents

Statements in authenticated documents prepared BEFORE JANUARY 1, 1998 are admissible

FRE 803(17) — Market Reports/Published Compilations

Market reports, lists, directories, other compilations admissible if generally used and relied upon by the public or persons in a particular occupation

FRE 803(18) — Learned Treatises

Admissible if: called to expert's attention on cross OR relied upon on direct; established as reliable authority by expert, other expert, or judicial notice; relevant portions READ INTO RECORD — NOT shown to jury; expert must be on the stand

FRE 803(22) — Prior Felony Conviction

Judgment of felony conviction admissible to prove any fact essential to the judgment; in criminal cases, government may use against accused only; subject to character evidence rules; misdemeanors excluded (persons may not defend minor charges)

FRE 804(a) — Five ways declarant is "unavailable"

(1) Privilege applies; (2) refuses to testify despite court order; (3) testifies to lack of memory; (4) death or physical/mental illness; (5) absent and proponent unable to procure attendance by reasonable means

804(a) — when is declarant NOT considered unavailable?

If the proponent CAUSED the unavailability (e.g., intimidated or killed the witness), or if the proponent failed to attempt to procure attendance

FRE 804(b)(1) — Former Testimony

Testimony given at prior trial, hearing, or deposition; party against whom offered (or predecessor in civil cases) had opportunity AND similar motive to develop testimony; declarant must be unavailable

Former testimony — identity of parties requirement

Only requires that the party against whom offered (or predecessor in civil cases) was a party in the former action and had adequate opportunity and motive to cross-examine; cause of action need not be identical

Former testimony — why is grand jury testimony excluded against accused?

Grand jury proceedings do not afford the accused any opportunity for cross-examination; therefore grand jury testimony of unavailable declarant is NOT admissible as former testimony against the accused

Former testimony — criminal case constitutional requirement

No Confrontation Clause violation if: (1) accused or attorney was present and had opportunity to cross-examine at time of prior testimony; (2) witness is now unavailable despite bona fide prosecution efforts; greater showing of unavailability required in criminal cases than civil

FRE 804(b)(2) — Dying Declaration

Declarant believed death was imminent; statement concerns the CAUSE OR CIRCUMSTANCES of what declarant believed to be impending death; admissible in homicide prosecution OR civil action; declarant must be unavailable (need not have actually died); firsthand knowledge required

Dying declaration — traditional view vs. FRE

Traditional/some states: admissible ONLY in homicide cases AND only if declarant actually died. FRE: admissible in homicide prosecutions OR civil actions; declarant need not have died, only be unavailable

FRE 804(b)(3) — Statement Against Interest

Statement against declarant's pecuniary, proprietary, or penal interest when made; reasonable person would only make it if believed true; declarant had personal knowledge; no motive to misrepresent; declarant unavailable; corroborating circumstances required for penal interest in criminal cases

SAI vs. OPS — critical distinctions

SAI (804(b)(3)): MUST be against interest when made; declarant may be a stranger to litigation; declarant must be unavailable. OPS (801(d)(2)): need not be against interest; declarant MUST be the opposing party; availability irrelevant

Williamson v. United States — SAI limitation

"Statement" against interest means a SINGLE SELF-INCULPATORY REMARK, not an extended declaration; non-self-inculpatory portions of a broader confession are NOT admissible under 804(b)(3)

Williamson — example

X confesses to drug crimes and also implicates Y; statements implicating Y contain no information against X's interest → NOT admissible against Y under 804(b)(3)

Chambers v. Mississippi — SAI in criminal cases

States that do not allow statements against penal interest may NOT exclude a third-party confession where doing so would deprive the accused of a fair trial (due process)

FRE 804(b)(4) — Personal or Family History

Statements about birth, marriage, divorce, death, relationship; declarant must be family member or intimately associated with family; may be based on personal knowledge or family reputation; FRE dropped requirement that statement predate the controversy

FRE 804(b)(6) — Forfeiture by Wrongdoing

Statements of unavailable declarant admissible against party who engaged in or acquiesced in wrongdoing INTENDED to cause declarant's unavailability; party forfeits both hearsay AND Confrontation Clause objections

FRE 807 — three requirements

(1) Sufficient guarantees of TRUSTWORTHINESS (totality of circumstances + corroborating evidence); (2) more PROBATIVE on the point than any other reasonably obtainable evidence; (3) reasonable written NOTICE to adverse party before trial including substance of statement and declarant's name

807 — can notice be given during trial?

YES — court may excuse lack of pretrial notice for good cause (e.g., witness suddenly becomes unavailable during trial or proponent learns of statement after trial begins)

FRE 105 — Limited Admissibility

When evidence is admissible for one purpose or against one party but not another, court MUST on timely request restrict evidence to proper scope and instruct the jury accordingly

FRE 403 — Balancing Test

Relevant evidence may be excluded if its probative value is SUBSTANTIALLY OUTWEIGHED by danger of: unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, or needless cumulative evidence

FRE 403 — who bears the heavier burden?

The party seeking exclusion; the standard "substantially outweighed" favors ADMISSION of evidence; exclusion under 403 is the exception, not the rule

FRE 404(b) — Other Acts / MIMIC

Other crimes/acts/wrongs inadmissible to prove propensity; BUT admissible for non-propensity purposes: Motive, Opportunity, Intent, Preparation/Plan, Knowledge, Identity, Absence of Mistake or Accident

404(b) — notice requirement in criminal cases

Prosecutor must provide reasonable PRETRIAL WRITTEN NOTICE articulating the non-propensity purpose and reasoning; court may excuse lack of pretrial notice for good cause

FRE 407 — Subsequent Remedial Measures

Inadmissible to prove negligence, culpable conduct, product defect, or need for warning; admissible to prove ownership/control, feasibility of precautions (when disputed), or spoliation of evidence

FRE 408 — Settlement Offers

Offers to compromise and statements made during negotiations are inadmissible to prove or disprove validity or amount of a disputed claim; also bars use for impeachment via prior inconsistent statement; does NOT protect pre-existing information merely disclosed during negotiations

FRE 408 — two triggers required

(1) Must be a claim (express or implied intent to make a claim); (2) claim must be disputed as to liability OR amount

FRE 409 — Medical Expenses

Payment or offer to pay medical expenses is NOT admissible to prove liability; UNLIKE 408, admissions of fact accompanying the payment offer ARE admissible

FRE 408 vs. FRE 409 — key difference

FRE 408: admissions of fact made during compromise negotiations are EXCLUDED along with the offer. FRE 409: admissions of fact accompanying medical payment offers are ADMISSIBLE

FRE 410 — Pleas

Withdrawn guilty pleas, nolo contendere pleas, offers to plead guilty, and statements made during plea negotiations are inadmissible in any proceeding against the defendant; protection may be validly waived (Mezzanatto)

FRE 411 — Liability Insurance

Inadmissible to show negligence or fault; admissible to prove ownership/control (when disputed), for impeachment of a witness, or as part of an admission

Crawford v. Washington — basic rule

In criminal cases, a TESTIMONIAL hearsay statement will not be admitted if: (1) offered against accused; (2) declarant is unavailable; (3) statement was testimonial; (4) accused had no prior opportunity to cross-examine the declarant

Crawford — what is a "testimonial" statement?

Still evolving; established: statements made during police interrogation whose primary purpose is to establish past events for later prosecution; affidavits/reports of forensic analysis; formal structured statements to law enforcement

Testimonial vs. Non-Testimonial — primary purpose test

If primary purpose of interrogation is to enable police to respond to an ONGOING EMERGENCY → NOT testimonial (Davis v. Washington). If primary purpose is to establish/prove past events for later prosecution → TESTIMONIAL (Davis v. Washington)

Davis v. Washington — 911 call example

Statements made during 911 call describing circumstances and perpetrator of an ONGOING domestic violence incident → NOT testimonial; primary purpose is to enable police response to emergency