Checklist to Hearsay (3)
- Is the statement hearsay or non-hearsay?
- Identify each out of court statement
- Identify how the statement is logically relevant
Hearsay Definition (Common Law and FRE/CA)
Common law: An out of court statement used to prove the truth of the statement.
FRE/CA: Hearsay means a statement that 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Confrontation Clause and Hearsay
Under Crawford, the Confrontation Clause applies only to testimonial hearsay in a criminal case. A hearsay statement is not admissible unless 1) the declarant testifies at trial and defense counsel has the opportunity to cross examine the declarant about the statement; or; the declarant is unavailable and the defense counsel had a prior opportunity to cross-examine the declarant about the statement.
Twelve Hearsay Exclusions
- Effect upon the listener
- Knowledge of fact or condition
- Words of independent legal significant
- Words which accompany and explain legally ambiguous conduct (both elements must be present)
- Knowledge of the declarant used to show something other than the thing known.
- State of mind
- Non-Assertive conduct
- Silence or absence of complaint
- Negative results of inquiries
- Words offered to identify declarant, time, place or relationship
- Prior inconsistent and consistent statements of a witness.
- Non-human evidence
Two elements for State of Mind Exlusion
- Declarant’s state of mind must be in issue.
2. Declarant’s state of mind must be indirectly expressed
Federal Exemptions to Hearsay
PAPP
- Prior inconsistent statements
2 Admissions of a party opponent - Prior consistent statements
- Prior identification
Prior Inconsistent Statement Rules (FRE and CA)
FRE: PIS must have been made under penalty of perjury at a trial, hearing or other proceeding or in a deposition and declarant testifies at trial and is subject to cross ex concerning the statement.
CA: No requirement that the prior statement be given under oath occasion now being offered against that party. But the witness must be given the opportunity to explain or deny the statement either while on the stand or if the witness has not been excused from giving further testimony.
Admission of Party Opponent
A statement made by a party on a prior occasion now being offered against that party.
Prior Consistent Statements (FRE and CA)
FRE: Permits use as substantive evidence even if not given under oath but only if offered at trial to rebut a charge of recent fabrication.
CA: Allows hearsay exception if the statement is consistent with the declarant’s testimony and the statement was made before the inconsistent statement or an express or implied charge has been made that the witness’ testimony is recently fabricated or is influenced by bias or other improper motive and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.
Prior Identification (FRE and CA)
A statement by declarant who testifies at trial and is subject to cross ex about the statement and the statement identifies a person as someone the declarant perceived earlier.
FRE: Permits its use as substantive evidence even if not made under oath.
CA: Allows hearsay exception if 1) the statement was made when the crime or other occurrence was fresh in the witness’ memory; and 2) the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.
Twenty One Exceptions to Hearsay
These are grouped in order of how they usually appear on an exam. Some exceptions require the declarant to be Unavailable (U) or Available (A) at trial.
- Dying Declaration (U)
- Excited Utterance
- Present Sense Impression
- Admissions
- Declaration against Interest (U)
- State of Mind
- State of Body
- Former Testimony (U)
- Past Recollection Recorded (A)
- Business Record
- Official Record
- Judgments
- Ancient Documents
- Learned Treatises
- Family Pedigree (U)
- Reputation Evidence
- Prior Identification (A)
- Prior Inconsistent Statements (A)
- Prior Consistent Statements (A)
- Federal Catchall
- Threat of Infliction of Injury - CA
Two Rules for Multiple Hearsay
One statement repeats or incorporates other hearsay statements; a chain of out of court statements.
- Each out of court statement in the chain must be admissible.
- If one of the statements is inadmissible, then both statements must be excluded unless the remaining statement has logical relevance standing alone.
Four Elements of Statement of Belief of Impending Death (FRE and CA)
Majority: Admissible only in criminal homicide cases
FRE: Admissible in civil actions but limited to homicide in criminal actions
- Declarant is unavailable (does not have to be dead under FRE)
- Declarant believes death is imminent and certain
- Statement relates to cause of death
- Personal Knowledge
CA: Dying Declaration: Admissible in civil actions and all criminal actions
- Declarant must be dead
Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.
Four Elements of Excited Utterance (FRE and CA)
FRE:
- Startling Event
- Statement while declarant under the stress of the exciting event
- Statement relates to startling event
- Personal knowledge
CA:
Spontaneous statement: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: 1) purports to narrate, describe, or explain an act, condition, or event perceived by the declarant and 2) was made spontaneously while the declarant was under the stress of excitement caused by such perception.
Four Elements of Present Sense Impression (FRE and CA)
FRE:
- Statement must be made contemporaneously with event or condition;
- Statement uttered immediately upon perception;
- Statement describes event
- Personal knowledge
CA: Has no present sense impression rule; Rather rule is
Contemporaneous Statement Exception
Evidence of a statement is not made inadmissible by the hearsay rule if the statement 1) is offered to explain, qualify, or make understandable conduct of the declarant; and 2) was made while the declarant was engaged in such conduct.
Eight types of party admissions
- Express: Where a party opponent directly states fault.
- Implied: Generally by conduct.
- Adoptive: Where a party expressly or implied through conduct, adopts another’s statement.
- Representative admissions: Admissions made by third parties as either authorized or vicarious.
- Admissions by co-conspirators (see approach)
- Admissions by predecessors in interest.
- Admissions of indebtedness by decedent made during his lifetime are admissible.
- Admissions of contributory negligence in wrongful death.
Three Elements to Admissions by Co-conspirators
- Conspiracy must be established.
- Statement made during conspiracy.
- Statement made in furtherance of conspiracy.
Four Elements to Adoptive Admissions by Silence
- Party heard the statement
- Party capable of denying the statement
- Matter asserted was within party’s knowledge
- Nature of statement or circumstances were such that a reasonable person would have denied.
Four Elements to Statement Against Interest
Statement that 1) a reasonable person in the declarant’s position would nave made only if the person believed it to be true because, when made, it (a) was so contrary to the declarant’s proprietary or pecuniary interest or (b) had so great a tendency to invalidate the declarant’s claim against someone else or (c) to expose the declarant to civil or criminal liability and 2) is supported by corroborations 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.
- Declarant can be a party or non-party
- Declarant unavailable
- Personal Knowledge
- Statement made against declarant’s interest
State of Mind
Declarant’s then existing mental, emotional, or physical condition.
FRE: State of mind statements can only be forward looking and only used as evidence to show that the declarant, not a third party, acted consistent with the declaration.
CA: CA Evid. Code permits statements of both past and present state of mind but only if declarant is unavailable and the state of mind is in itself in issue. Cannot be used as circumstantial evidence.
Statement for purposes of medical diagnosis or treatment. (Majority, FRE, CA)
Relates to the admissibility of a statement by declarant asserting his physical condition offered for the truth of such statement.
Majority/Minority: Statements not admissible if made to a physical for the purpose of preparing for expert testimony.
FRE: Eliminates distinction between consultation with physician for purpose of expert testimony.
CA: Exception is only applicable to a minor under age of 12 regarding child abuse.
Four Elements of Former Testimony
- Oath and opportunity to be cross ex.
- Identity of parties.
- Identity of issues.
- Declarant unavailable.
Three Elements of Past Recollection Recorded
The document can only be read into record as long as the following elements are present:
- Writing prepared or adopted by witness.
- Matter was fresh in witness’ mind.
- Witness vouches for accuracy of writing.
- Witness has insufficient present recollection of facts to testify.
- Personal knowledge.
Four Elements to Business Records
Admission of 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.
- 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 the conditions are shown by the testimony of the custodian or another qualified witness,
- Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
CA: Adopts a more restrictive approach that the federal rules to the admissibility of business records. Records should be limited to readily observable acts, events or conditions which would exclude a doctor’s diagnosis because of the need to be cross ex.
