Basic & Non-hearsay

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

An oral assertion, written assertion, or nonverbal conduct, if the person intended it to be an assertion.

Who is a "declarant" under FRE 801(B)?

The person who made the statement.

What are the two parts of "hearsay" under FRE 801(C)?

(1) The declarant does not make the statement while testifying at the current trial or hearing; and (2) A party offers it in evidence to prove the truth of the matter asserted in the statement.

What does FRE 802 say about hearsay?

Evidence of hearsay is NOT admissible unless any of the following provides otherwise: (a) Federal statute; (b) These rules; (c) Other rules prescribed by the Supreme Court.

What does the 6th Amendment Confrontation Clause say?

In a criminal proceeding, the accused shall enjoy the right to be confronted with the witnesses against him.

What are three ways to argue an out of court statement should come in?

(1) Not an assertion — hearsay rule doesn't apply at all. (2) Not being offered for the truth of the matter asserted, but offered for the non-hearsay purpose of declarant's state of mind, which is relevant because it makes a fact more or less likely. (3) Yes it is hearsay, but it is admissible under the exceptions for hearsay.

Why does the hearsay rule exist?

Adversary system relies heavily on cross-examination to ferret out the truth; hearsay rule protects a party's rights to cross-examine adverse witnesses. Hearsay rule rejects assertions which are not subjected to the test of cross-examination.

Why don't we need the declarant on the stand for non-hearsay purposes?

When out of court statements are offered for non-hearsay purposes, the declarant's presence on the witness stand is not needed for meaningful cross to occur.

Whose credibility matters for non-hearsay?

Non-hearsay: credibility issue concerns the in-court witness who serves as the conduit for the out of court statement, not the declarant.

Whose credibility matters for hearsay?

Hearsay: when an out of court statement is offered for its truth → credibility issues revolve around the hearsay declarant → need the declarant for a meaningful cross to occur.

What is Step 1 of the hearsay matrix?

Does evidence constitute an out of court statement?

What is Step 2 of the hearsay matrix?

If so, what purpose does the proponent seek to elicit an out of court statement?

What is Step 3 of the hearsay matrix?

If the proponent offers an out of court statement for NON-HEARSAY purpose (does not depend on statement accuracy) — is that purpose relevant? If so, does it pass the FRE 403 test (whether the probative value is substantially outweighed by the danger of unfair prejudice or any other factors)?

What is Step 4 of the hearsay matrix?

Can the proponent who offers an out of court statement for its truth satisfy the foundational requirement of an exemption or exception to the hearsay rule?

What is Step 5 of the hearsay matrix?

Even if the evidence is admissible under the hearsay rule, does the confrontation clause require its exclusion?

What is the sincerity danger?

Does a hearsay declarant's out of court statement reflect the declarant's belief? Cross-examiner might try to show the declarant lied.

What is the perception danger?

Did the declarant have an adequate opportunity to observe the events to which the hearsay statement refers? Cross-examiners might try to show that the declarant was too far away to accurately observe.

What is the memory danger?

How well did the declarant recall those events at the time the hearsay statement was made? Cross-examiners will try to show that the declarant could not recall those events.

What is the communication danger?

Even if sincere, had adequate opportunity to observe, and adequately recalled — how accurately does the declarant's choice of words describe those events? Did the declarant misspeak?

Can machines or animals be hearsay declarants?

Hearsay declarants limits the scope of the hearsay rule to a person making the statement. Declarants cannot involve mechanical devices or animals. Ex: speedometer or roosters.

What counts as a "statement" for hearsay?

A statement can be oral, written, or non-verbal conduct where there is an intent to assert that the statement is offered to prove. Remember: An out of court utterance can constitute hearsay if it qualifies as a statement.

What are hidden statements?

Thoughts can be expressed in many ways; depends on what the people intend to communicate, not the happenstance of their words. People can communicate through behavior instead of words which can be considered assertions.

What are sub-assertions?

Party might claim there is no hearsay issue because they are not relying on the truth of the entire statement but only the accuracy of a sub-assertion. Ex: Witness testifies a friend told them they saw J run up the hill at 3 pm — wants only the 3 pm to come in, not the other parts. Sub-assertion depends on accuracy. Cannot be admitted.

What are linked assertions?

Link a speaker's statement to the context in which it is made to determine whether it constitutes an assertion for hearsay purposes. Ex: Did J run the red light? Yes. (linked assertion that J ran the red light.)

What are invisible assertions?

Information presented as based on a witness's own perception when the witness is a conduit for information supplied by the invisible declarant. Ex: Did you talk to P? Yes. After talking to P, what did you think? Firm impression that P ran the red light. Firm impression based on D's out of court statement that P ran the red light.

What are vicarious assertions?

Statement made by declarant that is treated as though it was made by a different person — typically a party to the lawsuit in which the assertion is offered. Ex: B told the teller that B had guns and was prepared to shoot. 801(D)(2)(E) — judge would treat B's assertion as though S made it because it was a conspiracy to rob a bank and statement was made in the course of the robbery.

What is assertive conduct?

Non-verbal conduct of a person if it was intended as an assertion. FRE 401: If conduct is ambiguous → can raise a FRE 401 concern of relevancy. Ex: In a lineup, V pointed to number 3 — intended as a verbal assertion that 3 is the robber.

What is an implied assertion?

To prevent unfair outcomes, judges only apply the hearsay rule as if the intended meaning was expressed explicitly. When the purpose of the statement relies on the accuracy of the defendant's belief → statement should be treated as hearsay despite the intent. Wright: hearsay applies only when the intent — verbal or non-verbal — is intended as an assertion. Burden of proof: on the party claiming that an intent to assert existed.

Does paraphrasing avoid the hearsay rule?

No. Common hearsay misconceptions: Not hearsay if you paraphrase — FALSE. If the witness is the declarant → does not exclude a person's own hearsay statement. If the inference depends on the accuracy of the out of court statement — still hearsay. Affidavit — still hearsay. Not hearsay if the statement were made in a police officer's presence — FALSE.

Can a witness's own out of court statement be hearsay?

If the witness is talking about their own out of court statement → even if they are on the witness stand they are subject to cross examination but their out of court statements are hearsay.

What are testimonial hearsay assertions?

Out-of-court statements made with the primary purpose of being used in a later criminal prosecution: Formal police interrogation statements, Affidavits, Depositions, Prior courtroom testimony, Statements made under circumstances in which an objective witness would reasonably believe the statement would be used at a later trial.

What is the key question for testimonial vs. non-testimonial?

Was the statement made with an eye toward trial, or to deal with an immediate emergency?

How does the Confrontation Clause connect to hearsay?

In all criminal proceedings the accused shall enjoy the right to be confronted with the witnesses against them. Ability to cross-examine. Only applicable to criminal cases. Applies when the prosecution is trying to put on evidence of an out of court statement against a criminal defendant. Issue: how do we square this with hearsay — if a witness is discussing a testimonial out-of-court statement, the confrontation clause is triggered.

What did Crawford v. Washington hold?

Testimonial hearsay made by non-testifying, unavailable declarants is admissible against criminal defendants ONLY if defendant had a previous opportunity to cross-examine the declarant.

What are the facts of Crawford v. Washington?

Defendant prosecuted for attempting to kill his wife. Brought spousal privilege. Prosecution offered tape recording Sylvia gave to police. Crawford excluded the evidence because it was testimonial: 804(b)(3).

What counts as "testimonial" under Crawford?

Affidavits, Statements given to police, Depositions, Courtroom testimony, Statements made under circumstances which lead an objective witness to reasonably believe the statement would be used at a later trial.

What is Step 1 of the Confrontation Clause test?

Is it a criminal case?

What is Step 2 of the Confrontation Clause test?

Is it being offered by the prosecution?

What is Step 3 of the Confrontation Clause test?

Is it being offered by the prosecution as hearsay? (offered for the truth)

What is Step 4 of the Confrontation Clause test?

Is it testimonial?

What is Step 5 of the Confrontation Clause test?

Even if all elements are met, was/is there an opportunity for the defendant to cross-examine the declarant? (if no → confrontation clause violation) — Ex: deposition, previous trial that got reversed.

When is a statement non-testimonial?

Made during police custodial interrogation where the primary purpose is to enable police assistance to meet an ongoing emergency.

When is a statement testimonial?

No ongoing emergency; primary purpose is to establish or prove past events potentially relevant to later criminal prosecutions.

Are statements to non-police officers usually testimonial?

Statements to people who are not police officers → generally NOT testimonial. Not made with mind that statements will be used in a later trial.

Who decides what a statement is offered to prove?

The judge determines admissibility under FRE 104(a). The proponent must identify the non-hearsay purpose and show its relevance.

What is assertion-first case planning?

A lawyer anxious to offer a helpful out of court assertion can develop a legal theory that creates a non-hearsay use: start by asking 'What assertion is this making, and is there any way to use it that does not depend on its truth?'

What are the three steps for admissibility of a non-hearsay statement?

(1) Identify the non-hearsay use (state of mind, effect on listener, verbal act, impeachment, context). (2) Determine whether the use is relevant under FRE 401. (3) Pass FRE 403 — is the probative value substantially outweighed by the danger of unfair prejudice?

What are the five common non-hearsay purposes?

Declarant's state of mind (intent, knowledge, motive); Effect on the listener; Words of independent legal significance / verbal act; Impeachment — prior inconsistent statement; Context and meaning.

Whose job is it to show relevancy for a non-hearsay purpose?

Up to the offeror of the out of court statement to identify how the statement is relevant without regard to its accuracy.

Can you use a non-hearsay statement to prove something that depends on accuracy?

A party cannot rely on an assertion admitted for a non-hearsay purpose to prove an element of a claim or defense when proof of that element depends on the statement's accuracy.

What happens when someone objects that a state-of-mind statement is self-serving?

Offering an out of court statement as evidence of a party's state of mind produces an objection that the testimony is unreliable or self-serving which is inadmissible under FRE 403. Judges should evaluate credibility when determining whether evidence is admissible under FRE 403.

Why tie a non-hearsay use to a specific element?

Identifying a legitimate non-hearsay use requires knowing the elements of the substantive rules that you are proving or disproving. Tying a non-hearsay use to a particular element can establish an assertion's relevance.

How can the same statement be hearsay for one element and non-hearsay for another? (supermarket example)

J is injured, slips and falls in aisle 3. Two elements: (1) wet spot made the floor unreasonably dangerous; (2) the supermarket knew of the dangerous condition. R tries to introduce statement that there was a slippery wet spot on the floor in aisle 3. Admissible under element 2 as non-hearsay — words spoken to the manager are relevant to show the store was on notice. Inadmissible under element 1 — used to prove the truth of the matter (there was a wet spot).

What does Step 3 of the matrix (FRE 401) require?

Non-hearsay use must bear on witness credibility or have a tendency to make a fact of consequence more or less probable than it would be without the evidence. Steps: (1) Identify the non-hearsay use. (2) Determine whether the use has any bearing on a fact of consequence.

How can FRE 403 keep out a non-hearsay statement?

Judges can exclude evidence if the probative value is substantially outweighed by the danger of unfair prejudice or any other factors. Jury can use the assertion for the truth of the contents — that outweighs the probative value of the non-hearsay use.

How does speaker's state of mind work as non-hearsay?

State of mind: intent, knowledge, willfully — one of the most common claimed non-hearsay uses. Assertion admissible as non-hearsay when offered as circumstantial evidence of a declarant's subjective belief. Declarant's belief is a fact of consequence. Declarant's belief is circumstantial evidence of the declarant's behavior.

Can a declarant's state of mind be used to infer someone else's behavior?

A declarant's state of mind cannot serve as a basis of an inference about the behavior of someone other than the declarant.

How does listener's state of mind work as non-hearsay?

If the statement is relevant, the out of court statement that gave rise to the state of mind can qualify for admission as non-hearsay. Relevant if it is a fact of consequence — Ex: reasonable fear of developing cancer. P seeks advice from Dr. E. Dr. E said there is a high risk the injury will become cancerous. Relevant if it constitutes circumstantial evidence of behavior — Ex: J murdered B. J's defense is battered women syndrome. M stated that B told M that he had a gun and if J tried to leave him, he would find and kill her. (non-hearsay because it created an inference that J felt trapped in the relationship and was forced to do what she did to survive.)

How does verbal act / words of independent legal significance work as non-hearsay?

When the assertion itself constitutes direct evidence of a fact of consequence. Whether words constituting direct evidence were spoken or written, and the witness who testifies they were is in court and subject to cross. Something about the words — in a case, you have to get in the words said. Not that the words help prove something but saying the words have independent legal significance.

What is the robbery example for verbal act?

Ex: a person came into the store and said 'I have a gun give me your money' → those words constitute robbery with a weapon. Not that the words help prove something but saying the words have independent legal significance.

What is the defamation example for verbal act?

F sues R for defamation. F heard R tell club members that F likes red meat. Non-hearsay because it is direct evidence that R spoke the defamatory words — a fact of consequence to prove the case of defamation.

How does impeachment work as non-hearsay?

Evidence of a witness's out of court assertion is inconsistent with same witness's in-court testimony is admissible as non-hearsay. Fact that a witness made inconsistent statements is relevant for the possible impact on witness credibility.

What is the common law pre-impeachment foundational dance?

Bygone common law practice: time, place, and manner questioning. Those impeached with their own words have a chance to save their honor with explanations.

How does context and meaning work as non-hearsay?

To help witnesses appear credible, attorneys will elicit stories that include statements that were part and parcel of the events which they're testifying to. Trial judges have the power under FRE 403 to exclude contextual assertions if the time necessary to recount them or unfairly prejudicial impact outweighs the probative value.

Why is "circumstantial evidence of declarant's state of mind" called circumstantial?

The state of mind exceptions are considered direct evidence of the declarant's state of mind. Circumstantial evidence of declarant's state of mind is the non-hearsay version.

For effect on listener, what makes it relevant?

What makes it relevant is who they are saying it to. Negligent case: what is relevant is what was said to the store manager; the relevance is that the store was told and should have checked it out.

What do you need for impeachment as non-hearsay?

Not offering the prior statement for the truth but to show they said something different than what they testified. Declarant is always testifying — must be inconsistent. Apply 608 or 609 or common law.

What is the trial speech for offering a non-hearsay statement?

"This statement is not being offered for the truth of the matter asserted. It is being offered for the non-hearsay purpose of [CHOOSE: circumstantial evidence of declarant's state of mind / effect on listener / words of independent legal significance / impeachment / context + meaning], which is relevant because [TIE TO ELEMENT]."

When tying a non-hearsay use to relevance, what three things should you ask?

What are the elements? Is it relevant to credibility? Is it relevant to a material fact?

In a self-defense claim, why is a statement about someone being violent relevant as non-hearsay?

What makes it relevant is it is self-defense. It goes to the declarant's state of mind. If he believed the person was vicious and had weapons, makes it less likely that he was the initial aggressor because of the fear that they were violent and carried weapons. But if it was misidentification, it is not relevant to why the victim carried weapons.