Hearsay

Exclusions/Exemptions

100

What are the requirements for a prior inconsistent statement? 

Rule 801(d)(1)(A) - Prior inconsistent statement 

• The declarant testifies at the trial or hearing;
• The declarant is subject to cross-examination concerning the prior statement;
• The prior statement is inconsistent with the declarant’s testimony; and
• The prior statement was given under oath subject to the penalty or perjury at the trial, hearing, or other proceeding, or in a deposition.

200

What is the difference between impeachment by prior inconsistent statement and 801(d)(1)(A)?

Under 801(d)(1)(A), the statement is coming in for the TOMA. For impeachment, you are merely showing the witness is not credible. 

300

What are the requirements for a prior consistent statement? 

Rule 801(d)(1)(B) - Prior consistent statement 

• The declarant testifies at the trial or hearing;
• The declarant is subject to cross-examination concerning the prior statement;
• The prior statement is consistent with the declarant’s testimony;
• (1) the statement is offered to rebut an adversary’s express or implied charge that the declarant’s testimony is recently fabricated or the result of improper influence of motive (consistent statement must be prior to this motive or improper influence). Or (2) to rehabilitate a declarant’s credibility as a witness after it has been impeached on another ground.

400

What are the requirements for a prior statement of identification? 

Rule 801(d)(1)(C) - Pretrial identifications 

• The declarant testifies at the trial or hearing;
• The declarant is subject to cross-examination concerning the prior statement;
• The prior statement identifies a person;
• The statement was made after the declarant perceived (any of the five senses) the person.

500

What are the requirements for the vicarious admission -conspirator statements? 

Rule 801(d)(2)(E) - Conspirator statements 

• The hearsay declarant was the party's coconspirator; 
• The statement was made during and in furtherance of the conspiracy;
• The party’s adversary offers the hearsay statement into evidence.

Exclusions/Exemptions

100

What are the requirements for an opposing party statement? 

Rule 801(d)(2)(A) - Opposing party statement 

• The declarant is a party to the lawsuit in which the hearsay is offered;
• The declarant’s adversary offers the party’s statement into evidence.

200

What are the requirements for the vicarious admission - authorized statements? 

Rule 801(d)(2)(C) - Authorized statements 

• A hearsay declarant was expressly or impliedly a party’s authorized agent;
• The party’s adversary offers the hearsay statement into evidence.

300

What are the requirements for the vicarious admission - employee statements? 

Rule 801(d)(2)(D) - Employee statements 

• The declarant is a party’s agent or employee;  
• The declarant’s hearsay statement concerns a matter within the scope of the agency or employment;
• The declarant’s hearsay statement was made during the existence of the agent/servant relationship; and
• The party’s adversary offers the hearsay statement into evidence.

400

What are the requirements for an opposing party statement to be adopted by silence? 

Rule 801(d)(2)(B) - Adoptive statements 

• A party adopted by words or deeds manifested belief in the truth of the non-party declarant’s hearsay statement. (1) The party heard the statement (2) The party understood the statement (3) The subject matter of the statement must have been within the party’s personal knowledge (4) Under the circumstances, a reasonable person would have denied the statement had it not been true;
• The party’s adversary offers the hearsay statement into evidence.

500

Under which subsections is the statement itself insufficient to meet the foundational elements of the rule? 

(C) declarant's authority 

(D) the existence or scope of the relationship 

(E) the existence of the conspiracy or participation in it 

Exceptions

100

What is multiple hearsay? 

Rule 805 

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. 

200

What is 803(1), (2), and (3)? Foundational elements?

(1) Present sense impression

• The declarant made a statement while or immediately after perceiving an event or condition;
• The statement describes or explains the event or condition.

(2) Excited utterance 

• The declarant made a statement relating to a startling event or condition;
• The declarant was under the stress of excitement caused by the event or condition at the time the declarant made the statement.  

(3) Then existing mental, emotional, or physical condition 

• A statement identifies a declarant’s concurrently existing state of mind, emotion, sensation, or physical condition;
• The offeror of the statement seeks to prove the fact that produced the state of mind only if it is relevant to the issues surrounding the declarant’s will.

Note: the statement cannot be used to prove the fact remembered or believed (except for wills). 

300

What is 803(4) and (5)? Foundational elements? 

(4) Statement made for the purposes of medical diagnosis or treatment

• The declarant made a statement for the purpose of obtaining medical treatment or seeking a diagnosis;
• The information in the statement is reasonably pertinent to diagnosis or treatment;
• The statement concerns the declarant’s medical history, past or present symptoms, pain or sensations, or the inception or general character of the cause or external source of the declarant’s mental condition.

(5) Recorded recollection 

• The declarant has to testify;
• The declarant has insufficient recollection to testify about the matter fully and accurately;
• The declarant made a memorandum or record concerning the matter, or adopted a memorandum or record prepared by someone else;
• The matter was fresh in the declarant’s memory at the time the memorandum or record was adopted;
• The declarant testifies that the memorandum or record is accurate;
• The offering party can read the contents of an admissible memorandum or record to a judge or jury; only the adverse party can offer the memorandum or record itself into evidence.

400

What is Rule 803(18)? Foundational elements? 

Learned Treatises

• The statement is contained in a treatise, periodical, or pamphlet;
• the statement is called to the attention of an expert witness on CX or by the expert on DX;
• The publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.

Note: May be read into evidence but not received as an exhibit 

500

What is 803(6),(7),(8),(10)? What are the foundational requirements for (6) and (8)? 

(6) Records of a regularly conducted activity 

• A record of an act, event, condition, opinion, or diagnosis;
• 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 a 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 Rule 902(11) or (12) or with a statute permitting certification; and
• The opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

(7) absence of a record of a regularly conducted activity 

(8) public records 

• Records, reports, statements, or data complications in any form are those of a public office or agency;
• The records set forth: (1) The activities of the agency or office; (2) Matters that an agency or office has a legal duty to report (except for law enforcement reports in criminal cases); or (3) In civil cases and against the govt in criminal cases, factual findings resulting from an investigation carried out pursuant to legal authority;
• The opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

(10) absence of public records 

Exceptions

100

What are the five ways a declarant can be unavailable under 804(a)?

(1) privilege 

(2) refuse 

(3) unable to remember, even after recollection 

(4) deceased, or physical or mental infirmity 

(5) unable to procure by process or other reasonable means. 

200

What are the requirements for the former testimony exception? 

804(b)(1) - Former testimony 

• The declarant is unavailable as a witness;
• The declarant has previously testified under oath in a hearing or deposition in the same case or a different case;
• The party against whom the testimony is offered (1) Previously offered the testimony; or (2) Previously had an opportunity to cross-examine the declarant;
• The party against whom the former testimony is offered has the same motive as when the party either offered it previously or had an opportunity to cross-examine the declarant.

300

What are the requirements for the dying declarations exception? 

804(b)(2)

• The declarant un unavailable as a witness (they don’t have to be dead)
• The statement is offered in either a homicide prosecution or a civil proceeding;
• The declarant believed death was imminent at the time the statement was made;
• The statement concerns the cause or circumstances of what the declarant believed to be imminent death.

400

What are the requirements for the statements against interest exception? 

Rule 804(b)(3) - Statements against interest 

• The declarant is unavailable as a witness;
• The statement is sufficiently contrary to the declarant’s interests (which may be pecuniary, proprietary, or penal in nature) that a reasonable person in the declarant’s person would not have made the statement unless it was believed to be accurate;
• If a statement against penal interest is offered by either the prosecution or the defense in a criminal case, the offering party must also offer evidence of corroborating circumstances that clearly indicate that the statement is trustworthy.

500

What are the requirements for the (1) family or personal history statements and (2) statements offered against party that wrongfully caused declarant's unavailability exceptions? 

804(b)(4) - Family or personal history 

• A statement concerning the unavailable declarant's own birth, adoption, marriage, divorce, legitimacy, family relationship, or other similar fact of personal or family history. 
• A statement regarding similar facts about another person when the declarant was related to that person by blood, adoption, or marriage, or was intimately associated with the person's family.

804(b)6) - statements offered against party that wrongfully caused declarant's unavailability

• A statement offered against a party that wrongfully caused the declarant's unavailability is not excluded as hearsay. 

Other

100

What is the definition of hearsay?

An out-of-court statement offered to prove the truth of the matter asserted. 

200

What are the five non-hearsay purposes?

1. Speaker's state of mind 

2. effect on the listener

3. verbal acts or words of independent legal significance 

4. Prior inconsistent statement (impeachment) 

5. Context and meaning

300

What are the five questions you must ask to see if the confrontation clause applies?

1. Is the out of court statement admissible under a hearsay exception? 

2. Is it a criminal case? 

3. Is it being offered against a criminal defendant? 

4. Is it testimonial? 

5. Is the declarant testifying or was there a previous opportunity for the defendant to cross examine? 

400

What is testimonial evidence under Crawford?

Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. 

500

What is the residual exception? 

Rule 807 

• The statement is supported by sufficient guarantees of trustworthiness;
• It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
• Notice to adverse party.