What is Hearsay?
- An Out of court statement made by a human
- Other than one made by the declarant while testifying at trial
- offered to prove the truth of the matter asserted in the statement
Why is hearsay inadmissible?
Opponent has no opportunity to cross examine the declarant in front of the finder of fact
- Statement comes in for their truth without challenge to their credibility
What is a statement for hearsay purposes ?
- Oral or written assertion intending communication or
- Nonverbal conduct intended as an assertion (intended as a communication)
Offered to prove the truth of the matter asserted
If offered to prove something other than the truth of the matter asserted it’s not hearsay
- Legally operative facts - Statement offered to prove that the statement was made, regardless of its truth is not hearsay
- effect on recipient - St. offered to show effect on the person who heard it is not hearsay
- state of mind - St. offered as circ. ev. of declarant’s mental state is not hearsay
- impeachment - st. offered solely to impeach a wit. is not being introduced for its truth is not hearsay
If the declarant is the witness currently testifying, what is the impact on hearsay?
It is still Hearsay
- Court wants to test the statement at the time of utterance
- Hearsay applies to any statement, written, oral or assertive conduct that happend outside of the court
Statement that contains hearsay within hearsay
May be admissible as long as each part of the combined statement conforms to a hearsay exception
What is not hearsay?
The following are expressly defined as nonhearsay
- Declarant Witness’s Prior Statements
- Opposing Party’s Statement
What are the types of statements that qualify for the hearsay exemption for statement by a party opponent ?
- Statement made by a party to the current litigation
- Admissible without personal knowledge & can be in the form of an opinion, fact, anything
- Statement doesn’t need to be against the party’s interest at the time that it was made
- Includes:
- Judicial Admission
- Adoptive Admission
- Vicarious Statements
What is a judicial Admission?
An admission made during pleading, discovery process or proceeding is conclusive evidence
- Withdrawn guilty plea gen. not admiss. in subsequent civil or criminal proceeding
What is an adoptive admission?
- Statement of another person that a party expressly or impliedly adopts as his own
- The party heard
- The party understood the statement AND
- The party adopted it as her own
- Silence in response to a statement is considered an adoptive admission if:
- Person was present & heard & understood the statement
- The person had the ability & opportunity to deny the statement, and
- A reas. pers. similarly situated would have denied the statement
What is a vicarious Statement ?
Statement made by one pers. imputed to another based on relationship b/w them
- Employee or Agent
- Authorized Speaker
- Co-conspirators
Statement made by party’s Employee or Agent
Statement of a party’s employee offered against the party by the opponent
- Made during the scope of employer-employee relationship AND
- Within the scope of their employment
Statement about a subject that is made by a person Authorized Speaker
Made by person who is authorized by a party to make a statement on the subj. constitutes an opposing party’s statement
Statement made by co-conspirator
Statement made during & in furtherance of the conspiracy is admissible against other co-conspirators
- Statement made after being arrested is not admiss. since it was not made during or in furtherance of the conspiracy
When is a hearsay statement not used for its truth?
- When trying to prove that the listener heard it (doesn’t mean statement was true, just that he heard it)
- When the statement has independent legal significance
- When the statement includes tortious words & statement made includes magic words for a tort claim
What are the elements of the co-conspiracy hearsay exception?
- Existence of conspiracy is a preliminary facts that must be proven to the court by preponderance of the evidence
- Declarant was a member of the conspiracy
- The statement was made in furtherance of the conspiracy
- The statement was made during the conspiracy
What are the 3 types of prior statement hearsay exclusions ?
- Prior Inconsistent Statements
- Prior Consistent Statements
- Prior Identifications
For all 3 types of prior statements to be exempt from hearsay, what are the requirements ?
- Declarant must testify at trial
- Declarant must be available and subject to cross examination
- The statement must be either a:
- Prior inconsistent statement
- Prior consistent statement
- Prior identification
When is a prior inconsistent statement permitted to be offered for its truth?
- Prior Inconsistent Statement is made under penalty of perjury (under oath)
- At trial, hearing, or other proceeding, or in deposition
- to impeach the declarants credibility and
- As substantive evidence
When can a prior consistent statement be used?
Prior consistent statement, whether made under oath or not, may be admissible:
- To rehabilitate the witness after an inference of recent fabrication has been raised
- Only if the it was made b/f the declarant had reason to fabricate or the improper influence or motive arose OR
- To rehabilitate the declarant’s credibility as a witness when attacked on another ground
When can a prior identification be used?
A prev. out of court ID of a person after perceiving the pers. (e.g. lineup) is not hearsay & may be admiss. as Substantive evidence.
- Wit. must be testifying at the current trial and therefore subj. to cross.
- Rule can’t be applied if wit. is dead or unavailable to testify
For all 3 types of prior statements to be exempt from hearsay, there must be what?
- Declarant testimony at trial AND
- Declarant availability & subjection to cross examination
