Hearsay Checklist
Exam Process 1. What is the evidence? 2. How is the evidence relevant? 3. Is the probative value outweighed by unfair prejudice? 4. Is it hearsay? 5. Exempted by the definition? 6. Exception for availability immaterial? 7. Exception for unavailable? 8. Residual exception? 9. Confrontation Clause? 1. Hearsay definition – 801(a) – (c) a. Out of court b. Statement – must be assertive i. Oral or written statement ii. Nonverbal conduct intended as an assertion iii. Photos, movies, video tape, etc are not statements c. By a Declarant d. Offered to prove the truth of the matter asserted i. First approach 1. What are you trying to prove? 2. Does it matter if the statement in the quotes is true? ii. Second approach 1. Effect on listener or reader 2. Circumstantial evidence of state of mind 3. Impeachment 4. Res Gestae 5. Verbal acts with independent legal significance – Legally operative language. a. Defamation b. Warnings – shows notice c. Language of Contracts d. Words used to show effect on the hearer e. When a person’s motive for committing a crime is at issue. 6. Circumstantial evidence of memory/belief 2. Rationale for excluding Hearsay a. Perception b. Memory c. Narration d. Sincerity
Statements Which Are Note Hearsay By Definition – 801(d)/Statutory Non-Hearsay
3. Prior Inconsistent Statements – 801(d)(1)(A) a. Testify b. Cross examination c. Prior statement under oath at a trial, hearing, other proceeding, or deposition d. Inconsistent 4. Prior Consistent Statements – 801(d)(1)(B) a. Testify b. Cross examination c. Consistent d. To rebut an express or implied charge of recent fabrication i. Key is timing. 5. Statements Made for Identification – 801(d)(1)(C) a. Testify b. Cross examination c. Perceived the defendant some time after the crime d. Identification 6. Admissions by party opponent – 801(d)(2) a. Statement is offered against the party b. Statement was made by the party or on behalf of the party i. Party’s own statement ii. Adoptive admission 1. Explicit adoptions 2. Implicit adoptions a. Heard the statement b. Hearer had first hand knowledge of event spoken about c. Circumstances would naturally call for a response d. Was the party at liberty to respond? iii. Statement made by agent who was authorized to speak for the party iv. Agent or servant of party concerning a matter within the scope of the agency or employment and during the existence of the relationship. v. Co-conspirator 1. Conspiracy 2. Pendancy – conspiracy still in effect 3. Furtherance – words that bolster morale or give encouragement are in furtherance. c. Note: Personal knowledge is not required
Hearsay Exceptions; Availability Of The Declarant is Immaterial - 803
7. Present Sense Impressions – 803(1) a. Personal knowledge
b. Statement made during or immediately after perceiving the event or condition c. Describes the event or condition d. Note: unidentified declarant 8. Excited Utterances – 803(2) a. Personal knowledge b. Startling event c. Made while under continuous stress from the event, no time for reflection d. Need only relate to the event e. Note: unidentified declarant 9. Then existing state of mind – 803(3) a. Then existing state of mind, emotion, sensation, or physical condition i. Mental feeling, pain, bodily health b. Cannot be backward looking c. Intent i. To prove that the speaker did something ii. To prove someone else’s state of mind d. Statements of belief are not admissible to proof the fact believed 10. Statements for the purpose of medical diagnosis or treatment – 803(4) a. First hand knowledge b. Purpose of obtaining medical diagnosis or treatment c. Pertinent to diagnosis or treatment d. Backward looking is ok. e. Notes: i. Watch out for statements of self diagnosis, they don’t have the same indicia of reliability ii. Details about causation are covered only if they are pertinent to the medical workers task. iii. Identity of child molestor, courts split. 11. Recorded Recollections – 803(5) a. Record b. Witness once had first hand knowledge but is now forgetful so that he/she cannot testify fully and accurately i. Knowledge must not be revived by reference to the notes c. Made or adopted when memory was fresh d. Accurate when made e. Read but not entered, unless by party opponent. 12. Business Records – 803(6) – not limited to actual businesses a. Record b. Made at or near the time c. The source of the information (person who provides the information and not necessarily the one who records it) is a person with knowledge i. Need not be specifically identified d. The source person had a duty to acquire and report the information
e. Recorded during the course of regularly conducted business activity + regular practice to make record of it. f. Pursuant to a duty g. Unless untrustworthy h. Note: the activity must be their business. 13. Absence of entry in records kept in accordance with Business Records – 803(7) a. Not included b. To prove nonoccurrence or nonexistence of the matter c. The matter was of a kind of which a memorandum, report, etc. would normally be made and preserved. d. Unless untrustworthy. 14. Public Records and Reports – 803(8) a. Records, reports, statements, etc. in recorded form b. Setting forth i. The activities of an office or agency 1. Record 2. Content: what the agency or agents did but not what they saw or heard or concluded 3. Source of information 4. Duty: does not require regularity ii. Matters observed 1. Record 2. Source of information 3. Official duty to observe and report 4. Content: objective verifiable facts only 5. Law enforcement limitation in criminal cases – only when conducted by law enforcement!!! Other public agents or agencies are fine. a. Criminal – can’t be used by government, but Chase says that the defendant can use it. b. Civil cases – perfectly admissible. iii. Factual findings 1. Record 2. Source – first hand knowledge is not required 3. Resulting from investigation made pursuant to authority granted by law. 4. Not only objectively verifiable factual conclusions but also diagnoses, opinions, and reports that state conclusions as to cause, fault and blame. 5. The report may be based heavily on multiple hearsay. 6. Can be used a. In a civil action, Or b. Against the government in a criminal case. c. Not admissible against defendant in criminal case. c. Unless untrustworthy
i. Presumption of trustworthiness ii. Can be rebutted. Factors considered: 1. Timeliness of the investigation 2. Special skills or experience of the one conducting 3. Was a hearing held 4. Objective problems: motive to manipulate. d. Note: watch out for recorded recollections if the officer testifies. 15. Records of vital statistics – 803(9) 16. Absence of public record or entry – 803(10 17. Records of religious organizations – 803(11) 18. Marriage, baptismal, and similar certificates – 803(12) 19. Family records – 803(13) 20. Records of documents affecting an interest in property – 803(14) 21. Statements in documents affecting an interest in property – 803(15) 22. Statements in ancient documents - (803)(16) 23. Market reports, commercial publications – 803(17) 24. Learned treatises – 803(18) 25. Reputation concerning personal or family history – 803(19) 26. Reputation concerning boundaries or general history – 803(20) 27. Reputation as to character – 803(21) 28. Judgment of previous conviction – 803(22) 29. Judgment as to personal, family, or general history, or boundaries – 803(23)
Hearsay Exceptions; The Declarant Must Be Unavailable - 804
30. When is declarant unavailable? – 804(a) a. Privilege i. Must call witness to testify ii. Witness invokes privilege iii. The court recognizes the privilege iv. Some exceptions with criminal cases and the 5th b. Refuses to testify c. Lack of memory d. Unable to testify due to death or then existing physical or mental illness. e. Absent from hearing and … f. Not unavailable when absence is due to procurement or wrongdoing of the proponent. 31. Former Testimony – 804(b)(1) a. Unavailable b. Testimony given as a witness at prior hearing of the same or different proceeding or a deposition. c. If the party against whom it is being offered i. Criminal – is the same party and had an opportunity and similar motive to develop testimony
ii. Civil – party or predecessor in interest. “Community of interest” vs. “Strict Privity.” d. The party opponent had an opportunity and similar motive to develop testimony through direct, cross, or redirect examination. 32. Statement Under Belief of Impending Death – 804(b)(2) a. Declarant is unavailable b. Declarant believed that death was imminent c. Subject matter limitation: statement regarding the cause or circumstances of what D believed to be impending death. d. Only in homicide or civil case (In CA no limit) e. Note: Red flag when the person actually lives. Are they really unavailable? 33. Statements Against Interests – 804(b)(3) – Context is everything a. Unavailable b. Against a pecuniary or proprietary interest, OR subjects D to civil or criminal liability. At the time the statement was made. i. Watch for declarations which render invalid a claim 1. Like a debt being satisfied 2. Acknowledging non-ownership of something c. A reasonable person in the situation would not make the statement unless it was true. d. [Corroboration?] – when a defendant offers the statement of a declarant that is unavailable, and the statement exculpates the defendant and inculpates himself. e. Note: self serving and disserving comments – separate them where possible. 34. Statements of Personal or Family History a. Unavailable b. Statement regarding personal history or pedigree or a close associate c. Facts only (motivation is not allowed). 35. Residual Exception a. No other exception applies b. Circumstances guarantee the trustworthiness equal to other exceptions c. Three findings: material, more probative than other evidence, justice is served d. Notice i. The name and address of the person who made the statement 36. Forfeiture Provisions a. 804(a) – procuring the unavailability of a declarant – can’t claim unavailability. b. 804(b)(6) – the opponent of the evidence forfeits the right to object. 37. Rule 806 – impeaching the credibility of hearsay witnesses a. Allows you to impeach the credibility of the declarant with anything you could impeach the witness with.
b. Prior inconsistent statements. Regardless of whether it was made before or after the hearsay statement. 38. Confrontational Clause Analysis (Post Crawford) a. Is there a hearsay exception? b. Is it a criminal case? c. Is it testimonial? d. If testimonial, is the declarant unavailable and was there a prior opportunity to cross examine?