Hearsay

Definition of Hearsay

an out-of-court statement offered to prove the truth of the matter asserted

Prior Inconsistent Statement Hearsay

1. The declarant testifies and

2. Is subject to cross-examination about a prior statement,

3. And the statement is inconsistent with the declarant's testimony and was given under penalty of perjury at trial, hearing, or other proceeding or in a deposition

Prior Consistent Statement Hearsay

1. The declarant testifies and

2. Is subject to cross-examination about a prior statement,

3. And the statement is consistent with the declarant's testimony and is offered

   1. to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying;

   2. or to rehabilitate the declarant's credibility as a witness when attacked on another ground…

Prior Identification Hearsay

Prior identification is admissible if:

1. The declarant testifies and

2. Is subject to cross-examination about a prior statement,

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

Opposing Party Non-Hearsay

The statement is offered against an opposing party and:

1. was made by the party in an individual or representative capacity;

2. is one the party adopted or believed to be true;

3. was made by a person whom the party authorized to make a statement on the subject;

4. was made by the party's agent or employee on a matter within the scope of that relationship while it existed;

5. was made by the party's coconspirator during and in furtherance of the conspiracy

Declarant must be a party, not a victim in a criminal case. CEC excludes statements by employees

Present Sense Impression Hearsay

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

Excited Utterance Hearsay

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused is admissible.

Then-Existing Condition Hearsay

A statement of the declarant's then-existing

1. State of mind (such as motive, intent, or plan) or

2. Emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health)

3. But not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

Cannot be used to introduce state of mind of third party. CEC requires unavailability.

Statement for Medical Treatment Hearsay

A statement is admissible if it:

1. is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

2. describes medical history; past or present symptoms or sensations; their inception; or their general cause.

No statements of blame allowed. CEC only applies to child abuse cases with minors under 12.

Recorded Recollection Hearsay

A record that:

1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

2. was made or adopted by the witness when the matter was fresh in the witness's memory; and

3. accurately reflects the witness's knowledge.

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

Business Records Hearsay

1. the record was made at or near the time by someone with knowledge;

2. the record was kept in the course of a regularly conducted activity of a business or organization;

3. making the record was a regular practice of that activity

4. all these conditions are shown by the testimony of the custodian or another qualified witness, and

   1. the opponent does not show that the source of information or the method or circumstances of preparation indicates a lack of trustworthiness

Absence of a Business Record

Evidence that a matter is not included in a record is admitted if:

1. the evidence is admitted to prove that the matter did not occur or exist;

2. a record was regularly kept for a matter of that kind; and

3. the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

Public Records Hearsay

A record or statement of a public office is admissible if it sets out:

1. The office's activities;

2. A matter observed while under a legal duty to report; or

3. In a civil case or against the government in a criminal case, factual findings, from a legally authorized investigation; and

4. the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness

In a criminal case, a matter observed by law-enforcement personnel is not admissible.

Market Reports Hearsay

Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations can be admissible.

Statements in Learned Treatises Hearsay

A statement contained in a treatise, periodical, or pamphlet is admissible if:

1. the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

2. the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

Hearsay within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with a exception to the rule.

FRE Unavailability

A declarant is unavailable as a witness if:

1. A privilege exists

2. Refusal to testify

3. Claims to not remember the matter

4. Cannot be present due to physical or mental illness

5. Is absent and has not been able to be procured by reasonable means

FRE Former Testimony Hearsay

Former testimony is admissible if:

1. Declarant is unavailable

2. Prior statement was given at a trial, hearing, or deposition

3. Opponent [predecessor] had opportunity to develop testimony

4. Opponent had similar motive to develop testimony

Statement Under Belief of Imminent Death Hearsay

Elements

1. Declarant is unavailable

2. Applies only to homicide prosecutions and civil proceedings

3. Declarant subjectively believed death was imminent

4. Statement concerns cause or circumstances of death

CEC requires death, not just unavailability.

Statement Against Interest Hearsay

Elements:

1. Declarant unavailable

2. Statement that a reasonable person would only make if they believed it to be true because it was against civil or penal interest

3. At the time it was made

4. Corroboration for statements against penal interest when offered in criminal case

CEC includes against social interest.

Statements Offered Against Party that Caused Declarant’s Unavailability Hearsay

Elements:

1. Declarant unavailable

2. Other party engaged or acquiesced in wrongdoing

3. Intended to cause unavailability

4. Wrongdoing caused unavailability

Mere persuasion is not considered wrongdoing. Government must prove wrongdoing by a preponderance

CEC Former Testimony Hearsay in Criminal Cases

1. Only allows depositions from DIFFERENT case. Does not allow use of depositions in same case

2. May be offered only IF against same party with opportunity and similar motive to cross

CEC Former Testimony Hearsay in Civil Cases

1. Allows former testimony against party if similar motive and interest to cross

2. No legal relationship between 2 parties required

Residual Hearsay Exception

A hearsay statement that is inadmissible under the hearsay exceptions can be admissible if:

1. the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of the circumstances under which it was made and evidence, if any, corroborating the statement; and

2. it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

Requires reasonable notice. Also known as the “near miss” exception

Attacking or Supporting the Declarant’s Credibility

When hearsay has been admitted in evidence the declarant's credibility may be attacked and then supported:

1. By any evidence that would be admissible for those purposes if the declarant had testified as a witness

2. the court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.

3. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination

Confrontation Clause

If a testimonial statement is offered by the prosecution against the accused in a criminal case:

1. the accused must have the chance to cross-examine the declarant

2. If the accused cannot cross-examine, the prosecutor must establish both unavailability and prior opportunity to cross-examine

Does not apply to hearsay EXEMPTIONS

Testimonial statement definition

a statement made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use prosecutorially at a later trial

Statement (for the purposes of hearsay)

An oral, written, or physical assertion. A physical assertion is nonverbal conducted intended as an assertion.