Hearsay by a declarant who has testified and is subject to cross-examination at trial is actually non-hearsay if those statements…
- identify a person as someone the declarant perceived earlier
- are inconsistent with the declarant’s current testimony and were made under penalty of perjury at a former proceeding
- are consistent with the declarant’s current testimony and offered to rebut a charge of fabrication or improper influence OR to rehabilitate the declarant’s credibility when attacked on other grounds
When is the only time a prior consistent statement may be used to rebut a charge of recent fabrication or improper influence…
If the statement was made before a motive for the alleged fabrication or improper influence arose
State of mind hearsay exception
Statement’s regarding a declarant’s then-existing state of mind (motive, intent, plan) or emotional/physical condition (mental feeling, pain, bodily health) are excepted from the rule against hearsay
Business records
Excepted from hearsay if they are
- Made at or near the time of the recorded event
- Made by or based on information from someone with personal knowledge
- Made and kept as a regular practice in the course of regular activities of the business
Past recollection recorded
Hearsay exception that applies to records that
- Concern a matter a witness once knew but cannot recall
- Were made or adopted by the witness when the matter was fresh in their mind
- Accurately reflect the witness’s knowledge at that time
Rule re: double hearsay
When there is double hearsay (e.g. “I told __” neither statement is admissible unless both are excluded or excepted from the rule against hearsay
Requirements elements to use summaries to prove content (FRE 1006)
- originals are voluminous and cannot be conveniently examined in court
- originals would be admissible
- originals or duplicates were made available for other parties to examine/copy
- summary is fair and accurate
Excited utterance
statements related to a startling event or condition that are made while the declarant is still under the stress of excitement from the event or condition
Present sense impression
Statements describing or explaining an event or condition that are made while or immediately after the declarant perceived it
Hearsay exception for statements in documents affecting property interest
Admissible if…
- the matter stated was relevant to the document’s purpose
- later dealings with the property do not contradict the truth of the statement or the purport of the document
Residual hearsay exception
- the statement is supported by sufficient guarantees of trustworthiness
- it is more probative on the point than any other evidence obtainable through reasonable efforts
- the proponent gives the adverse party notice of the intent to offer the statement
Public records hearsay exception
Public office’s records or statements that set out
- office activities
- matters observed by office representatives while under legal duty to report
- factual findings from legally authorized investigations when offered in civil cases or against the government in criminal cases
