What is hearsay?
It is a statement:
- the declarant does not make while testifying at the current trial or hearing; and
- a party offers in evidence to prove the truth of the matter asserted in the statement.
A statement is either an oral or written assertion, intending communication or an assertive conduct, intending communication.
FRE 801.
What is evidence not offered for its truth?
Evidence that is not offered for its truth is not hearsay.
- Effect on the listener - To show notice, motive, etc.
- Verbal acts - Words that have independent legal significance or legally operative facts.
- State of mind - Show relevant attitude, belief, or intent.
- Impeachment - Challenges the credibility not for truth.
What are hearsay exemptions?
Some out-of-court statement are not considered hearsay despite being offered for their truth.
- Statement by party opponent (Admissions) (FRE801(d)(2)) - A statement is not hearsay when the statement is offered against an opposing party, and the statement is:
a. made by the party;
b. one the party adopted or believed to be true;
c. made by one authorized;
d. made by an agent/employee; or
e. made by the party’s co-conspirator during and in furtherance of the conspiracy.
Admission by silence is possible when a reasonable person would have denied the statement. This does not apply in the case of Miranda warnings.
- Prior Statements (FRE 801(d)(1)) - A statement is not hearsay when the declarant testifies and is subject to cross-examination about a prior statement, and the state is either:
a. A Prior Sworn Inconsistent Statement - Sworn and inconsistent with testimony.
b. A Prior Consistent Statement - Consistent and offered to rebut an express or implied charge of recent fabrication or acted from an improper motive or influence.
c. Prior Identification - Identifies someone the declarant perceived earlier.
FRE 801(d).
What are the hearsay exceptions regardless of the availability of the declarant?
Hearsay is inadmissible unless any of the following provides otherwise: a federal statute; FRE; or other rules prescribed by the Supreme Court.
- Present-Sense Impression;
- Excited Utterance;
- Then-Existing mental, Emotional, or Physical Conditions;
- Statement made for Medical Diagnosis or Treatment;
- Recorded Recollection;
- Records of a Regularly Conducted Activity;
- Absence of a Record;
- Public Records;
9 Public Records of Vital Statistics; - Absence of Public Record;
- Records of Religious Organizations Concerning Personal or Family History;
- Certificates of Marriage, Baptism, and Similar Ceremonies;
- Family Records;
- Records of Documents that Affect an Interest in Property;
- Statements in Documents that Affect an Interest in Property;
- Statement in Ancient Documents;
- Market Reports and Similar Commercial Publications;
- Statements in Learned Treatises, Periodicals, or Pamphlets;
- Reputation Concerning Personal or Family History;
- Reputation Concerning Boundaries or General History;
- Reputation Concerning Character;
- Judgment of a Previous Conviction; and
- Judgements Involving Personal, Family, or General History, or a Boundary.
FRE 803.
What are present sense impressions?
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
What are excited utterances?
A statement relating to a startling event or condition, made while the declarant was under the stress or excitement that it caused.
What are then-existing mental, emotion, or physical condition?
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), 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 declarant’s will.
What are statements made for medical diagnosis or treatment?
A statement that:
- is made for - and is reasonably pertinent to - medical diagnosis or treatment; and
- describes medical history, past or present symptoms or sensations, their inception, or their general cause.
The statements can be made to any medical personnel or family member.
What are past recollection recorded?
A record that:
- is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
- was made or adopted by the witness when the matter was fresh in the witness’s memory; and
- accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence. However, it may only be received as an exhibit if offered by an adverse party.
An adverse party may:
- inspect the writing
- cross-examine with it
- show it to the jury for comparison
- introduce relevant portions into evidence.
What are records of regularly conducted activity?
A record of an act, event, condition, opinion, or diagnosis if:
- the record was made at or near the time by - or from information transmitted by - someone with knowledge;
- the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
- making the record was a regular practice of that activity;
- all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with the rules for domestic or foreign records under Rule 902(11) or (12) or with a statute permitting certification; and
- neither the source of information nor the method of circumstances of preparation indicate a lack of trustworthiness.
What is the absence of business record?
Evidence that a matter is not included in a record of a regularly conducted activity if:
- the evidence is admitted to prove that the matter did not occur or exist;
- a record was regularly kept for a matter of that kind; and
- neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
What are public records?
A record or statement of a public office if:
- it sets out:
a. the office’s activities;
b. a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement; or
c. in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and - neither the source of information nor other circumstances indicate a lack of trustworthiness.
What are records of vital statistics?
A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
What is the absence of a public record?
Testimony - or a certification under Rule 902 - that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:
- the record or statement does not exist; or
- a matter did not occur or exist, if a public office regularly kept a record or statement fro a matter of that kind.
What are family records?
A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
What are statements in Ancient Documents?
A statement in a document that is at least 20 years old and whose authenticity is established.
What are market reports and similar commercial publications?
Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
What are learned treatises?
A statement contained in a treatise, periodical, or pamphlet it:
- the statement is called to the attention of an expert witness on cross-examinationor reliedon by the expert on direct examination; and
- 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.
What is reputation concerning character?
A reputation among a person’s associates or in the community concerning the person’s character.
What are judgments of previous conviction?
Evidence of a final judgment of conviction if:
- the judgment was entered after a trial or guilty plea, but not a no contest plea;
- the conviction was for a felony;
- the evidence is admitted to prove any fact essential to the judgment; and
- when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the D.
What are the hearsay exceptions when the declarant is unavailable?
The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
- Former Testimony;
- Statement under the Belief of Imminent Death;
- Statement against Interest;
- Statement of Personal or Family History;
- Statement Offered against a Party that Wrongfully Caused the Declarant’s Unavailability.
FRE 804.
What is former testimony?
Testimony that:
- was given as a witness at trial, hearing or lawful deposition, whether given during the current proceeding or a different one; or
- is now offered against a party who had an opportunity and simlar motive to develop it by direct, cross-, or redirect examination.
What are statements under belief of impending death?
A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
What are statements against interest?
A statement that:
- a reasonable person in the declarant’s position would have made only if the person beleived it to be true because, when made, it was so contrary to the declarant’s propriety or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
- is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
