I. Hearsay A. Approach B. Hearsay Rule 1. Rationales for Hearsay rule a) Absence of cross-examination b) Absence of demeanor evidence c) Absence of oath 2. Hearsay risks a) Misperception b) Faulty memory c) Ambiguity/faulty narration d) Insincerity/distortion 3. Hearsay is presumptively inadmissible!!! 4. FRE 802 – "Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by act of Congress." 5. FRE 801(c) - Definition: 1. Statement a. Oral or written assertion; OR b. Nonverbal conduct of a person, if it is intended by the person as an assertion (usually silence is not intended to be an assertion) 2. Made out of court 3. Offered to prove the truth of the matter asserted C. Exclusions (Non-Hearsay Purpose) 1. Impeachment – undercuts credibility of witness 2. Verbal Acts – independent legal significance 3. Effect on Listener – effect on person who heard it (not the declarant) 4. Circumstantial Evidence of State of Mind - what was in the mind of the speaker (declarant) D. Exemption (Statutory Non-Hearsay) 1. Prior Inconsistent Statements (FRE 801(d)(1)(A))
a) DL testifies b) Subject to XE concerning the prior statement. (The Supreme Court decide that if you are in the witness chair answering questions you are necessarily subject to cross-examination, even if you don’t remember. c) The statement must be inconsistent with the present testimony (1) Rule for inconsistent – would a reasonable person conclude that the 2 statements differ in any material respect (2) Lack of memory is inconsistent when witness falsely claims not to recall facts (determined by judge) but NOT if the witness is truly forgetful d) Statement must have been made under oath e) Statement made at trial, deposition, or other proceeding **CA approach: the requirements are the declarant testifies, subject to cross-examination, and its inconsistent (allowed for substantive and impeachment purposes)
2. Prior Consistent Statements (FRE 801(d)(1)(B))
a) b) c) d)
DL testifies Subject to XE Statement consistent w/testimony Statement offered to rebut express or implied charge of a. Recent fabrication; or b. Improper influence or motive (the key is when the motive arose!)
3. Prior Identification (FRE 801(d)(1)(C))
a) DL testifies b) Subject to XE c) Statement is one of identification by DL after perceiving the person (ID has to be picking out a person, can’t be a description)
4. Admission by Party Opponent (FRE 801(d)(2)(A))
a) Statement made by a party (in individual or representative capacity) b) Statement offered against a party Bruton options for prosecutor with co-defendants: 1) sever trials 2) redact the statement 3) hope declarant defendant takes the stand 4) empanel separate juries 5) choose not to use the evidence at all
5. Adoptive Admissions (FRE 801(d)(2)(B))
a) Statement in which party manifests an adoption or belief in it’s truth b) Statement offered against party “Tacit admissions doctrine” – at a minimum requires: 1) party heard statement 2) matter asserted was within knowledge 3) the occasion and nature of the statement were such that a reasonable person would have responded if he did not mean to accept it BUT statement would still be excluded if: 1) party did not understand statement or its significance 2) some physical or psychological factor explains lack of reply 3) speaker is someone party would likely ignore 4) silence came in response to a question by law enforcement (PostMiranda silence can’t be used against a criminal defendant)
6. Admission by Speaking Agent (FRE 801(d)(2)(C))
a) Statement by person authorized to speak on party’s behalf concerning the subject b) Statement offered against party (1) (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority)
7. Admissions by Employees and Agents (FRE 801(d)(2)(D))
a) b) c) d) Statement made by party’s agent or servant (employee) Concerning matter within the scope of agency or employment Made during existence of agency or employment Statement offered against party (1) (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority)
8. Co-Conspirator Statements (FRE 801(d)(2)(E))
a) b) c) d) e) f) Existence of a conspiracy DL was part of conspiracy D was part of conspiracy Statement was made during course of conspiracy (pendency) Statement was made in furtherance of conspiracy (furtherance) Statement offered against party (1) (the contents of the statement may be considered, but are not alone sufficient to establish DL’s authority) ***Bright line rule – once in the custody of law enforcement, the conspiracy is over in respect to you.
E. Exceptions – Rational: Reliability and Necessity 1. Present Sense Impressions (FRE 803(1))
a) Statement describing or explaining event or condition (personal knowledge implied) b) Made while DL is perceiving the event or condition or immediately thereafter (immediate = no time for conscious reflection to fabricate)
2. Excited Utterances (FRE 803(2))
a) Statement relating to a startling event or condition b) Made while DL was under stress of excitement caused by event or condition (length of time between stress and statement depends on magnitude of event or condition)
3. State of Mind (FRE 803(3))
a) Then-existing physical condition (has to be present tense) b) Then-existing mental or emotional condition (as a general rule statements of fear by the victim are not admissible ultimately because of 403) c) Subsequent conduct or intent a. 1st party Hillmon – statements of intent can be produced to show subsequent conduct. b. 3rd party Hillmon – can use statements of intent to show a 3rd party’s subsequent conduct ONLY if you have some sort of independent corroborating evidence. d) Facts concerning a will (reliability and necessity allows us to look backwards)
4. Statements to Physicians (FRE 803(4))
a) Statement made for purposes of medical treatment or diagnosis; and (1) Statement describes medical history; or (2) Statement describes past symptoms, pain, or sensations; or (3) Statement describes inception or general character of the cause or external source; and b) Statement reasonably pertinent to diagnosis or treatment The Renville Test 1) the declarant’s motive in making the statement is consistent with the purposes of promoting treatment or diagnosis; AND 2) the content of the statement is reasonably relied on by the physician in treatment or diagnosis.
5. Past Recollection Recorded (FRE 803(5))
a) A memorandum or record b) Concerning a matter about which witness once had knowledge (must lay the foundation) c) Now knowledge is insufficient to testify fully & accurately d) Statement made or adopted by witness e) Made while fresh in witness’ testimony f) Statement correctly reflect witness’ once-fresh knowledge
6. Business Records (FRE 803(6))
a) A record of a business in any form (very broad) b) Record concerns acts, events, conditions, opinions, or diagnoses c) Record made at or near time by, or from information transmitted by, a person with knowledge (source has to be a person with knowledge) d) Made in ordinary course of business (can involve a chain, as long as every link in the chain is in the ordinary course of business) e) Kept in ordinary course of business (regular habit) f) (Foundation) As testified to by custodian or qualified person (1) (Unless not trustworthy)
7. Public Records (FRE 803(8))
a) Records of a public office or agency setting forth (1) Activities of office or agency – “what we did” (2) Matters observed and reported pursuant to duty, excluding reports by police or other law enforcement personnel in criminal cases – “what we saw” (3) Factual findings from investigations pursuant to legal authority, except against criminal defendants – “what we concluded” b) Unless untrustworthy *A police report is a public record but doesn’t come in unless not untrustworthy; 4 factors to determine: 1) report timely 2) officer had experience/skill 3) no formal hearing held (but just a factor) 4) no indication of improper motive *Oates: 1) law enforcement personnel is very broad 2) can’t use 803(6) to overcome 803(8) with criminal defendants; with the exception of 803(5) because the witness is sitting in the chair so no Confrontation Clause problems
8. Unavailability Requirement (FRE 804(a)) – deals more with necessity
a) Privilege – typically have to get on the stand and assert privilege b) Refusal to Testify – on the stand, persists in refusal, despite a court order c) Lack of Memory d) Dead or Infirm a. Factors to determine if a witness is sufficiently infirm: i. Discretion of judge
ii. Importance of witness to this case iii. Nature and extent of cross-examination iv. How long is he going to be gone v. Nature of illness vi. Expected time of recovery vii. Any special circumstances counseling against delay e) Unavoidable Absence – cannot be obtained at trial by subpoena or other reasonable means; have to show a good faith effort. (1) Unless availability caused or procured by proponent wrongfully
9. Former Testimony (FRE 804(b)(1))
a) Declarant unavailable b) Testimony given at a hearing or deposition in same or different case (does not cover grand jury proceedings because there is no opportunity for defense to cross-examine) c) Offered against party who had similar motive and opportunity to examine DL in a prior proceeding (1) If in civil proceeding, predecessor in interest must have had a similar motive
10. Dying Declarations (FRE 804(b)(2))
a) DL unavailable b) Civil case or criminal homicide trial c) DL’s statement made while believing death to be imminent (imminent=death near at hand) d) DL’s statement concerns the cause or circumstances of what DL believes to be impending death (DL doesn’t have to die, just has to believe they’re going to die) e) Personal knowledge
11. Declarations Against Interest (FRE 804(b)(3))
a) DL unavailable b) Statement, at the time made, so far contrary to pecuniary, or proprietary interest, or so tended to subject DL to civil or criminal liability that c) Reasonable person in DL’s position would not have made it unless statement was true (1) When there is a statement offered to expose DL and exculpate the accused, the statement is not admissible unless there are corroborating circumstances indicating the trustworthiness of the statement. *3 different scenarios of how and when this comes up: 1) civil arena – very little nuance and complication to this 2) if offered by criminal accused – then there’s no Confrontation Clause problem but have to have something that clearly corroborates substance of the statement 3) if prosecution offers it against criminal accused – problem is that the way the Confrontation Clause is written, it cannot be overcome unless the exception is firmly rooted.
12. Statements of Personal or Family History (FRE 804(b)(4))
a) "A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; OR b) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared." c) Elements: (1) DL unavailable (2) Statement is about DL’s own family history OR that of relative or other intimate associates 13. Forfeiture by Wrongdoing (FRE 804(b)(6)) – "A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." 14. Residual Exception (FRE 807) – "A statement not specifically covered by Rule 803 or 804, but having equivalent guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines that: a) The statement is offered as evidence of a material fact; b) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; AND c) The general purpose s of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant." 15. Elements of 807 a) Circumstantial guarantees of trustworthiness equivalent to other exceptions b) Offered as evidence of material fact c) More probative on the point for which it is offered than any other evidence reasonably available d) Interests of justice are served by admission e) Pre-trial notice given to opposing party **807 is highly fact-specific, look at “freeze-frame” 16. Confrontation Clause – to overcome need to show: a) Necessity – requirement of unavailability unless the exception doesn’t require it; AND b) Reliability
(1) Firmly rooted exception – time tested to be reliable (everything except 807 & 804(b)(3) penal interest part); OR (2) Particularized guarantees of trustworthiness (PGT) 17. Minor Exceptions a) FRE 803(18) – Learned Treatises (1) Treatise, periodical, pamphlet has to be shown to be a reliable authority by an expert or judicial notice; AND (2) Expert has to either rely on it in direct or can be crossexamined on it. b) FRE 803(7) – Absence of entry in records kept in accordance with the provisions of 803(6) c) FRE 803(10) – Absence of public record or entry d) FRE 803(9) – Records of Vital Statistics e) FRE 803(11) – Records of Religious Organizations f) FRE 803(12) – Marriage, Baptismal, and similar certificates g) FRE 803(13) – Family Records h) FRE 803(14) – Records of documents affecting an interest in property i) FRE 803(15) – Statements in documents affecting an interest in property j) FRE 803(16) – Ancient documents. Statements in a document in existence 20 years or more the authenticity of which is established. k) FRE 803(17) – Market reports, commercial publications l) FRE 803(19) – Reputation concerning personal or family history m) FRE 803(20) – Reputation concerning boundaries or general history n) FRE 803(21) – Reputation as to Character o) FRE 803(22) – Judgment of previous convictions p) FRE 803(23) – Judgment as to personal, family, or general history, or boundaries.