Hearsay Analysis Steps 1-2 (Flowchart)

What is the basic idea of hearsay? (801)

Hearsay is a statement made by a declarant that did not occur while testifying at the current trial/hearing, and that a party offers in evidence to prove the truth of the matter asserted (TOMA) in that statement

Who is a hearsay declarant? Who is a hearsay witness?

Hearsay declarant: the person who actually uttered or wrote the out-of-court statement

Hearsay witness: the person who is present in court and relaying the declarant’s statements to the jury

What is a hearsay document?

Document produced out of court that reflects a statement by the declarant

What is the rule against hearsay? (802)

Hearsay is not admissible unless provided otherwise by statute, FRE, or SCOTUS ruling

What is double hearsay?

An out-of-court statement that refers to another out-of-court statement

When can double hearsay be admissible?

If the proponent can fine an applicable exception to each layer of hearsay

What are the four steps of suspected hearsay analysis?

1. Is the evidence relevant?

2. Is the evidence hearsay?

3. Is it admissible under an applicable hearsay exception?

4. Should the evidence be barred for other reasons?/Would the prejudicial effect of admitting the evidence substantially outweigh its probative value?

How do you determine if hearsay is relevant? (404)

If the hearsay is material and has probative value, it is relevant.

What are the five requirements of hearsay? (801)

1. Out-of-court

2. Statement

3. Qualifying declarant

4. Offered for TOMA

5. Not subject to definitional exclusions of FRE 801(d)

→ If yes to all 5, it is hearsay; if no to any, not hearsay and analysis can stop

Define “out-of-court” in relation to hearsay

1. Literally outside of the courtroom walls where the current proceeding is happening

2. Inside the courtroom but in a proceeding prior to the current proceeding where evidence is being offered

Define “statement” in relation to hearsay

A statement can be:

1. Verbal utterance,

2. Writing,

3. Non-verbal conduct subjectively intended as assertion

Define “qualifying declarant” in relation to hearsay

A human who makes the out-of-court statement; cannot be an animal; can only be a machine if the machine is repeating a human assertion

Define “TOMA” in relation to hearsay

The proponent of the hearsay is trying to prove the assertion that the declarant stated.

List the 6 main non-TOMA purposes

1. Impeachment

2. Verbal act

3. Effect on listener/reader

4. Verbal object/verbal marker

5. Circumstantial evidence of state of mind

6. Circumstantial evidence of knowledge, memory, or belief

What is the non-TOMA purpose of impeachment?

Showing the inconsistency between present testimony and a prior statement by the same witness (not necessarily under oath), as opposed to proving the truth of the prior inconsistent statement; not necessary for statements to be true

What is the non-TOMA purpose of verbal act?

Utterance or writing that has legal significance on its own; especially when such use of the words is an element of the plaintiff’s claim or element of the criminal offense

Not used to prove the truth of the statement, but to demonstrate that the statement itself was made/the legal act occurred

What are the main three verbal acts to remember?

1. Offer and acceptance (ex. uttering certain words have legal significance that can bind you to a contract, even if your words were not true)

2. Defamation/slander/libel (ex. defendant can be liable just for making defamatory statements, regardless of whether they are true)

3. Statement of possession (ex. a prisoner possessing violent literature or an employee downloading a porn story on their work computer — the act of possessing the words is significant, not the truth of them)

4. Bonus: extortion, bribery, robbery by threat, etc. all have utterance of words as an element of the offense (ex. robber hands you a note saying he will shoot you if you don’t give him the money; whether he actually intended to shoot you doesn’t matter)

What is the non-TOMA purpose of effect on listener/reader?

Showing that the statement had a legally significant effect on the listener/reader; looking at how the words affected them, rather than the truth of the words

**Not applicable to effect on the declarant

What is the non-TOMA purpose of verbal object/marker?

Relying on words as an identifier, rather than their assertive aspect (such as the words showing the origin or owner of an item bearing those words)

What is the non-TOMA purpose of circumstantial evidence of state of mind?

Proving indirectly the declarant’s state of mind (ex. If someone says 2+2=5, you could use that statement to show they aren’t very smart, rather than to prove that 2+2 actually equals 5)

**not for statements that are direct proof of mental state (those are covered by 803(3))

What is the non-TOMA purpose of circumstantial evidence of knowledge, memory, or belief?

Suggesting that the statement indicates that the person has a very distinctive knowledge without considering the assertive content of the words (ex. diary entry of declarant recounting a unique inscription on a door could show that they were at that door at some point, rather than proving that the inscription is actually on the door)

What are the two broad categories of definitional exceptions under 801(d)? Are these statements hearsay? Even if offered for TOMA?

1. Prior statements by witnesses who are testifying in the current proceeding and are available for cross

2. Admissions by party-opponents (APOs)

Not hearsay; these are not hearsay exceptions, rather they are by definition not hearsay to begin with; if they’re offered for TOMA that’s fine bc not hearsay

Under the exceptions of 801(d)(1), what three types of declarant-witness prior statements are considered not hearsay when the declarant is presently testifying and available for cross?

1. Prior statement given under oath that is inconsistent with their current testimony

2. Prior statement is consistent with their current testimony

3. Prior statement identifies a person as someone the declarant perceived earlier

Under the exceptions of 801(d)(1), if trying to admit a prior statement that is inconsistent with one’s current testimony, can a prior statement in an affidavit work?

No; must be statement made under oath in court-like setting such as trial, hearing, deposition, etc.

Under the exceptions of 801(d)(1), if trying to admit a prior statement that is inconsistent with one’s current testimony, can a present lapse of memory show inconsistency?

Yes

Under the exceptions of 801(d)(1), if trying to admit a prior statement that is inconsistent with one’s current testimony, is diametric opposition required to show inconsistency?

No

Under the exceptions of 801(d)(1), if trying to admit a prior statement that is consistent with one’s current testimony, what must the prior statement be offered for?

Must be offered to rebut the charge that declarant lied/had bad motive or to rehab their creditability that was attacked

Under the exceptions of 801(d)(1), if trying to admit a prior statement that is consistent with one’s current testimony, does the charge that the declarant lied/had bad motive have to be express?

Can be express or implied; usually comes up on cross by opposing party

Under the exceptions of 801(d)(1), if trying to admit a prior statement that is consistent with one’s current testimony, when must the prior statement have been made?

Before improper influence or motive arose

Under the exceptions of 801(d)(2), what five types of admissions by party opponents (APOs) are not considered hearsay?

1. Statement by individual party opponent

2. Statement adopted by party opponent

3. Statement by representative authorized to speak for party opponent on certain subjects

4. Statement of party opponent’s agent

5. Statement by co-conspirator of party opponent

Under the exceptions of 801(d)(2), if trying to admit a statement by an individual party opponent, who must the proponent be?

The proponent of the statement must be adversary of declarant

Under the exceptions of 801(d)(2), if trying to admit a statement by an individual party opponent, what is the Bruton rule regarding a defendant’s admission implicating their co-defendants?

If a non-testifying defendant has made an admission implicating a co-defendant, that statement can only be used against the defendant who said it; cannot be used against the co-defendants (unless the statement qualifies as co-conspirator hearsay)

**could potentially be avoided by redacting all references to co-defendants, trying them separately, or having the declarant testify with immunity

Under the exceptions of 801(d)(2), if trying to admit a statement by an individual party opponent, must statements be not conclusory? Against interest? Under oath?

Statements can be conclusory, and do not need to be against interest or under oath

Under the exceptions of 801(d)(2), if trying to admit a statement adopted by a party opponent, what must you show if your theory is adoption by silence?

Must show that silence manifest adoption:

1. Party opponent was aware of the statement,

2. Had knowledge of matters discussed in the statement, and

3. Circumstances show that silence meant adoption

Under the exceptions of 801(d)(2), if trying to admit a statement adopted by a party opponent, what is the Doyle rule in criminal cases?

Govt can’t use defendant’s post-Miranda silence to show adoption of statement by silence

Under the exceptions of 801(d)(2), if trying to admit a statement made by a party opponent’s agent, what are the 2 requirements of the declarant?

1. Declarant was the party opponent’s agent at the time of the statement

2. Declarant was acting within the scope of the agency

Under the exceptions of 801(d)(2), if trying to admit a statement by a co-conspirator of a party opponent, what three requirements must the statement meet?

1. Statement was made by co-conspirator (there was agreement to commit a crime; declarant does not need to be charged with the crime to be considered a co-conspirator)

2. Statement was made during conspiracy period

3. Statement was made in furtherance of conspiracy (post-arrest statement does not count; could be a statement in furtherance even if some co-conspirators got arrested if the crime is still ongoing)