Hearsay

Question 1

FRE 801

Definitions that Apply to This Article: Exclusions from Hearsay

Answer 1

• Federal Rule of Evidence 801 defines hearsay as a statement made outside of court that is offered in court to prove the truth of the matter asserted in the statement. However, not all out-of-court statements are hearsay. Some statements fall within exclusions to the hearsay rule, which means they are not considered hearsay and may be admissible as evidence. When answering a question about FRE 801 on an Evidence law school exam, there are several key factors you should consider, including the nature of the statement, the purpose for which it is offered, and the potential for prejudice.
• 1. Nature of the Statement
• The first factor to consider when evaluating whether a statement falls within an exclusion to the hearsay rule is the nature of the statement itself. Certain types of statements, such as prior inconsistent statements or statements made by a party opponent, may be admissible under an exclusion to the hearsay rule.
• Example: In a criminal case, the defendant is charged with assault with a deadly weapon. The victim, a witness for the prosecution, testifies at trial that the defendant threatened him with a knife prior to the assault.
• Fact Pattern: The defendant’s attorney seeks to introduce a prior statement made by the victim in which he denied that the defendant had a knife.
• Analysis: The prior statement made by the victim denying that the defendant had a knife is a prior inconsistent statement and falls within an exclusion to the hearsay rule. Therefore, it may be admissible as evidence at trial.
• 2 . Purpose for Which the Statement is Offered
• The second factor to consider when evaluating whether a statement falls within an exclusion to the hearsay rule is the purpose for which the statement is offered. Certain types of statements may be admissible for a particular purpose, such as to impeach a witness or to provide context for other evidence.
• Example: In a civil case, the plaintiff is suing the defendant for breach of contract. The plaintiff’s attorney seeks to introduce a statement made by the defendant in which he admits to breaching the contract.
• Fact Pattern: The defendant’s attorney objects to the admission of the statement on the grounds that it is hearsay.
• Analysis: The statement made by the defendant admitting to breaching the contract is an admission by a party opponent and falls within an exclusion to the hearsay rule. Therefore, it may be admissible as evidence at trial for the purpose of proving that the defendant breached the contract.

• 3. Potential for Prejudice

• The third factor to consider when evaluating whether a statement falls within an exclusion to the hearsay rule is the potential for prejudice. Even if a statement falls within an exclusion to the hearsay rule, it may be excluded if its admission would unfairly prejudice one of the parties.
• Example: In a medical malpractice case, the plaintiff is suing the defendant doctor for negligence in failing to diagnose her condition. The plaintiff’s attorney seeks to introduce a statement made by the defendant to a colleague in which he admits that he did not perform a necessary diagnostic test.
• Fact Pattern: The defendant’s attorney objects to the admission of the statement on the grounds that it is hearsay and would unfairly prejudice the defendant.
• Analysis: The statement made by the defendant admitting that he did not perform a necessary diagnostic test is an admission by a party opponent and falls within an exclusion to the hearsay rule. However, the admission may be excluded if its admission would unfairly prejudice the defendant by creating a negative impression in the minds of the jury. Therefore, the trial court must balance the potential for prejudice against the probative value of the evidence before deciding whether to admit the statement.
• In conclusion, when evaluating whether a statement falls within an exclusion to the hearsay rule under FRE 801 on an Evidence law school exam, you should consider the nature of the statement, the purpose for which it is offered and the potential for prejudice. By considering these factors, you can determine whether a statement is admissible as evidence and how it can be used in court.

Additionally, it is important to note that even if a statement falls within an exclusion to the hearsay rule, it may still be subject to other evidentiary rules, such as relevance or authentication. Therefore, it is important to consider the admissibility of a statement under all applicable evidentiary rules before introducing it as evidence.

Question 2

FRE 802

The Rule Against Hearsay

Answer 2

Hearsay is not admissible unless any of the following provides otherwise:
* a federal statute;
* these rules; or
* other rules prescribed by the Supreme Court.

Question 3

FRE 803

Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant
Is Available as a Witness

Answer 3

• Federal Rule of Evidence 803 sets forth a number of exceptions to the hearsay rule, which generally prohibits the admission of out-of-court statements offered for the truth of the matter asserted. Each of the subsections of Rule 803 provides a different exception to the hearsay rule. Here’s a brief overview of each subsection and what to look for when trying to answer an Evidence law school exam question related to them:
• FRE 803(1) - Present Sense Impression: This subsection allows for the admission of statements that describe or explain an event or condition, made while or immediately after the declarant perceived it. To apply this exception, you should look for a statement that describes an event or condition that the declarant witnessed, and was made at the time of or shortly after the event or condition occurred.
• Example fact pattern: During a car accident, a witness exclaims, “That car just ran the red light!” This statement would qualify for the present sense impression exception under FRE 803(1) because it describes the event as the declarant perceived it.
• FRE 803(2) - Excited Utterance: This subsection allows for the admission of statements made under the stress of excitement caused by an event or condition. To apply this exception, you should look for a statement that was made in the immediate aftermath of a shocking or traumatic event, and was caused by the emotional shock of the event.
• Example fact pattern: A victim of a shooting tells a police officer, “He shot me! Oh my God, he shot me!” This statement would qualify for the excited utterance exception under FRE 803(2) because it was made immediately after a traumatic event and under the stress of the emotional shock caused by the event.
• FRE 803(3) - Statement of Existing State of Mind or Emotional State: This subsection allows for the admission of statements that describe the declarant’s then-existing state of mind or emotional state, including a statement of intent, plan, motive, or design. To apply this exception, you should look for a statement that describes the declarant’s current mental or emotional state, or their plan, intent, or motive at the time of the statement.
• Example fact pattern: A person sends a text message to their friend that says, “I’m so upset about the breakup. I’m going to talk to a therapist tomorrow.” This statement would qualify for the statement of existing state of mind exception under FRE 803(3) because it describes the declarant’s current emotional state and their intent to seek help.
• FRE 803(4) - Statement Made for Medical Diagnosis or Treatment: This subsection allows for the admission of statements made for purposes of medical diagnosis or treatment, including descriptions of medical history, symptoms, or pain. To apply this exception, you should look for a statement that was made to a healthcare provider for the purpose of receiving medical treatment or diagnosis.
• Example fact pattern: A patient tells their doctor, “I’ve been feeling dizzy and nauseous lately.” This statement would qualify for the medical diagnosis or treatment exception under FRE 803(4) because it describes the patient’s symptoms and is made to a healthcare provider for the purpose of receiving medical treatment or diagnosis.
• FRE 803(5) - Recorded Recollection: This subsection allows for the admission of a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, so long as the record was made or adopted when the matter was fresh in the witness’s memory and reflects that knowledge correctly. To apply this exception, you should look for a memorandum or record created by a witness who had knowledge of a matter, but now has insufficient recollection to testify about it accurately.
• Example fact pattern: A witness who saw a car accident several months ago creates a written report about the accident shortly after it occurred. The witness now has difficulty remembering details of the accident and cannot testify accurately. However, the written report created by the witness at the time of the accident accurately reflects their knowledge of the event. This written report would qualify for the recorded recollection exception under FRE 803(5).
• FRE 803(6) - Records of Regularly Conducted Activity: This subsection allows for the admission of records of regularly conducted activity, also known as business records, if they are made in the regular course of business and the content of the record is based on the personal knowledge of the declarant or someone with a business duty to transmit the information. To apply this exception, you should look for a record created in the regular course of business that contains information based on the personal knowledge of the declarant or someone with a business duty to transmit the information.
• Example fact pattern: A hospital’s record of a patient’s treatment would qualify for the records of regularly conducted activity exception under FRE 803(6) because the record is created in the regular course of business and contains information based on the personal knowledge of healthcare providers who treated the patient.
• FRE 803(7) - Absence of a Record of a Regularly Conducted Activity: This subsection allows for the admission of evidence that a record of a regularly conducted activity does not exist or cannot be found, if the evidence is based on the testimony or certification of a custodian or other qualified witness. To apply this exception, you should look for evidence that a record of a regularly conducted activity does not exist or cannot be found, based on the testimony or certification of a custodian or other qualified witness.
• Example fact pattern: A company cannot produce a record of an employee’s attendance because the record was accidentally destroyed. However, the company’s human resources manager testifies that the record existed and was destroyed by mistake. This testimony would qualify for the absence of a record of a regularly conducted activity exception under FRE 803(7).
• FRE 803(8) - Public Records and Reports: This subsection allows for the admission of records, reports, or data compilations of public offices or agencies, unless the source of the information or other circumstances indicate a lack of trustworthiness. To apply this exception, you should look for a record, report, or data compilation created by a public office or agency that is trustworthy.
• Example fact pattern: A police report created in the course of an investigation would qualify for the public records and reports exception under FRE 803(8) because it is created by a public agency and is considered trustworthy. However, a blog post that summarizes the police report would not qualify for the exception because the source of the information is not a public office or agency.
• In summary, when answering an Evidence law school exam question related to FRE 803, it’s important to identify which subsection of the rule applies to the statement or record in question, and to analyze whether the exception’s requirements are met. Look for statements or records that fall within one of the eight subsections and apply the specific requirements of the subsection to determine if the evidence is admissible under the hearsay rule.

Question 4

FRE 804

Exceptions to the Rule Against Hearsay—When the Declarant Is Unavailable
as a Witness

Answer 4

1. When answering a question related to Federal Rule of Evidence (FRE) 804 on an Evidence law school exam, you should look for the following:

2 Whether the declarant is unavailable: In order for a hearsay statement to be admissible under FRE 804, the declarant must be unavailable. Unavailability can be due to several reasons, including death, illness, absence from the court’s jurisdiction, and refusal to testify.

3. Whether the statement falls within a hearsay exception: FRE 804 provides for several hearsay exceptions that apply when the declarant is unavailable. For example, the exception for statements against interest (FRE 804(b)(3)) allows for the admission of a statement that a reasonable person in the declarant’s position would not have made unless it was true. Another example is the exception for statements of personal or family history (FRE 804(b)(4)), which allows for the admission of statements concerning the declarant’s birth, adoption, marriage, divorce, etc.
4. Whether there are any Constitutional limitations on admissibility: Even if the statement falls within a hearsay exception, its admission may be limited by Constitutional concerns. For example, the Confrontation Clause of the Sixth Amendment requires that the defendant have the right to confront and cross-examine witnesses against them. If the statement in question was made by a witness who is not available for cross-examination, its admission may be limited by the Confrontation Clause.
5. Whether the statement is trustworthy: In some cases, the court may require that the statement be trustworthy or reliable before admitting it under a hearsay exception. For example, the exception for statements against interest requires that the statement be sufficiently against the declarant’s interest that a reasonable person in the declarant’s position would not have made the statement unless it was true.

6 Potential objections and counterarguments: Once you have analyzed the admissibility of the statement under FRE 804 and considered any additional factors that may impact its admissibility, you should consider potential objections and counterarguments that may arise. For example, the opposing counsel may argue that the statement is inadmissible due to lack of trustworthiness or that its admission would violate the Confrontation Clause.

• Here’s an example fact pattern:
• Defendant is charged with murder. At trial, the prosecution seeks to introduce a hearsay statement made by a key witness, who has since passed away. The statement was made to a friend of the witness, who testifies at trial that the witness told him that he saw the defendant shoot the victim. The defense objects to the admission of the statement, arguing that it is inadmissible hearsay. The prosecution argues that the statement is admissible under the exception for statements against interest.
• In analyzing the admissibility of the statement under FRE 804, you would need to consider whether the declarant is unavailable, whether the statement falls within a hearsay exception, whether there are any Constitutional limitations on its admissibility, whether the statement is trustworthy, and potential objections and counterarguments. In this case, the declarant is unavailable due to death. The statement may fall within the exception for statements against interest, as it appears to be against the witness’s interest to implicate the defendant in the crime. However, the defense may argue that the statement is not trustworthy, or that its admission would violate the Confrontation Clause, as the defendant would not have the opportunity to cross-examine the witness. Ultimately, a determination would need to be made based on the specific facts and applicable law.

Question 5

FRE 805

Hearsay in Hearsay

Answer 5

Federal Rule of Evidence 805 governs the admissibility of hearsay within hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Hearsay within hearsay, as the name suggests, involves a statement that includes one or more statements that themselves are hearsay. For example, a witness who testifies that he overheard a conversation between two people, where one person told the other person what someone else said, would be hearsay within hearsay.

When answering a question related to FRE 805 on an Evidence law school exam, it is important to look at the specific facts and determine whether the statement containing hearsay within hearsay is admissible. Here are some steps to take when analyzing the admissibility of hearsay within hearsay:

Identify the statement containing hearsay within hearsay: The first step is to identify the statement or statements that contain hearsay within hearsay. This will help to focus your analysis and determine which levels of hearsay must be independently admissible.

Determine whether each level of hearsay is admissible under a hearsay exception or exclusion: Even if a statement contains multiple levels of hearsay, each level must be admissible under a hearsay exception or exclusion for the statement as a whole to be admissible. This means that each level of hearsay must meet the requirements of a hearsay exception or exclusion. For example, the statement may be admissible under the business records exception, the excited utterance exception, or the statement against interest exception.

Consider the trustworthiness of the statement as a whole: Even if each level of hearsay is independently admissible, the statement as a whole may still be excluded if it lacks sufficient indicia of reliability or trustworthiness. Factors to consider include the declarant’s knowledge, the declarant’s motive, the timing and circumstances of the statement, and whether the statement is consistent with other evidence.

Consider any Constitutional limitations on admissibility: As with any hearsay statement, the admission of a statement containing multiple levels of hearsay may be limited by Constitutional concerns, such as the Confrontation Clause of the Sixth Amendment. The Confrontation Clause requires that a defendant have the opportunity to cross-examine the witnesses against him. If the statement contains hearsay from a non-testifying witness, the defendant may argue that its admission would violate the Confrontation Clause.

Anticipate objections and counterarguments: Once you have analyzed the admissibility of the statement under FRE 805 and considered any additional factors that may impact its admissibility, you should consider potential objections and counterarguments that may arise. For example, the opposing counsel may argue that the statement is inadmissible due to lack of trustworthiness or that its admission would violate the Confrontation Clause.

Let’s consider an example fact pattern:

A man is on trial for murder. The prosecution seeks to admit a statement made by the victim’s neighbor, who testifies that she heard the victim tell her boyfriend that the defendant had threatened to kill her. The neighbor also testifies that she heard the boyfriend tell the victim that he had heard the defendant say he was going to kill her. The defense objects, arguing that the statement is hearsay within hearsay.

In this example, the statement containing hearsay within hearsay is the neighbor’s testimony about what the victim said to her boyfriend and what the boyfriend said to the victim. To determine the admissibility of this statement under FRE 805, we need to consider each level of hearsay.

The first level of hearsay is the victim’s statement to her boyfriend. This statement may be admissible under the statement against interest exception, as it tends to incriminate the defendant. The victim

Question 6

FRE 806
Attacking and Supporting the Declarant’s Credibility

Answer 6

• Federal Rule of Evidence 806 addresses impeachment of hearsay declarants. It allows for the admission of additional evidence to attack the credibility of a hearsay declarant when their statements have been admitted into evidence. The rule essentially allows the opposing party to impeach the hearsay declarant as if they were a testifying witness.
• Here are some steps to take when analyzing the admissibility of evidence under FRE 806 on an Evidence law school exam:
• 1. Identify the hearsay declarant: The first step is to identify the declarant whose statements have been admitted as hearsay. This will help you understand who can be impeached under FRE 806.

2. Determine whether the hearsay declarant’s credibility has been attacked: To use FRE 806, the hearsay declarant’s credibility must have been attacked. This can be done through cross-examination or by introducing other evidence. The attacking evidence must relate to a material issue in the case and must not be solely for the purpose of impeachment.
   *
3. Determine the type of impeachment evidence: The next step is to determine the type of evidence that can be used to impeach the hearsay declarant’s credibility. Under FRE 806, any evidence that would be admissible to impeach a witness can be used to attack the hearsay declarant’s credibility. This includes evidence of bias, prior inconsistent statements, criminal convictions, and character for truthfulness.
4. Assess the probative value of the impeachment evidence: Even if the impeachment evidence is admissible, it may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. This balancing test requires the court to weigh the probative value of the evidence against its potential prejudicial impact.
5. Consider any limitations on the use of impeachment evidence: Certain types of impeachment evidence, such as prior bad acts or convictions, may be subject to limitations on their use. For example, under FRE 609, the admissibility of a criminal conviction for impeachment purposes depends on the nature of the crime, the time that has elapsed since the conviction, and the importance of the witness’s testimony.

• Let’s consider an example fact pattern:
• DuRing a murder trial, the prosecution introduces a hearsay statement from a witness who claims to have overheard the defendant confess to the crime. The defense cross-examines the witness and introduces evidence of the witness’s criminal record and history of lying. The hearsay statement is admitted into evidence. The defense then seeks to introduce additional evidence to attack the credibility of the hearsay declarant under FRE 806.
• In this example, the hearsay declarant is the witness who claimed to have overheard the defendant’s confession. The defense has already attacked the witness’s credibility through cross-examination and by introducing evidence of her criminal record and history of lying. To use FRE 806, the defense must show that the impeachment evidence they seek to introduce relates to a material issue in the case and is not solely for the purpose of impeachment.
• The defense seeks to introduce evidence of prior inconsistent statements made by the hearsay declarant to other witnesses. They argue that these statements undermine the credibility of the hearsay declarant and suggest that she may have fabricated her testimony. The prosecution objects, arguing that the evidence is hearsay and that its probative value is substantially outweighed by the danger of confusing the jury.