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FRE 801: Hearsay
Hearsay is: 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.
1. What is a statement?
2. What is an assertion?
3. What does hearsay depend upon?
1. A Statement is a person’s oral or written assertion, or nonverbal conduct, if the person intended it as an assertion. A Declarant is a person who made the statement.
- 2. For it to be an assertion, it has to be intended
- by the actor to the people who see him; Perception, memory, narraration, and bias.
- 3. Hearsay depends on the credibility/competency of
- someone who is not in court
1. 4 Steps to Determine Hearsay
2. Exception to the Steps
1. A. What is the statement? - Exact words
B. I.D. the players; Who is the declarant, witness? It does not matter who offers up the evidence. Only determine the declarant and the witness to the statement
C. Does the witness know personally that the statement is correct or only that it was made?
D. For what purpose is the evidence offered?
2. Independent Legal Significance
- A. Things that are offered for their legal significance
- regardless of hearsay. The mere fact that they are stated is probative
B. Words that create agency/relationships, promises, wills, leases, words of an agreement or contract, words that form the basis of claims (fraud, slander), notice (statement offered for its effect on the listener)
1. Are implied assertions hearsay?
2. Are out-of-court statements made by witnesses testifying at trial hearsay?
1. FRE 801(d)
1. For witnesses, they must testify at trial and be subject to cross-examination
FRE 801(d)(2) - Statement of a Party Opponent
An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
Statements of Witnesses: 3 Categories
Under FRE, these statements are not hearsay.
- 1. Inconsistent Statements
- 2. Consistent Statements
- 3. ID
There should be a limiting instruction
Statement by the Party
Under FRE, these are not hearsay.
2. Adopted - Heard, understood, acquiesced statement. Conversations with the cops are the exception.
4. Employee/Agent - It must be along the course and duties of the employee while they are gainfully employed.
5. Co-conspirator - Statements made to fellow partners in crime, during conspiracy, and in furtherance of conspiracy.
1. Applying the Rules on Personal Admissions, Admissions by Speaking Agents, and Admissions by Agents Acting within the Scope of their Authority
2. Within the Scope of Employment/Agency
- A. Applying the Rules on Personal Admissions, Admissions by Speaking Agents, and Admissions by Agents Acting within the Scope of their Authority
- i. With personal statements, no personal knowledge
- need be shown. When a statement is made, personal knowledge is presumed
- B. Within the Scope of the Agency or Employment
- i. A manager of a local franchise can make a
- statement. However, if involving an incident in the corporate office for example, the corporate office cannot be held liable to it.
- ii. The statement has to be made while the employee/agent is still employed.
- 1) Statements are not hearsay if they are made by a
- co-conspirator during and in furtherance of the conspiracy.
- 2) A conspiracy ends at abandonment, arrest, and
- division of the loot
- 3) Judge needs to be convinced beyond a reasonable
- i. Authorized and employee/agent only needs
Unavailability - A witness is unavailable if....
- 1. A witness is unavailable if they claim a privilege, refusal to testify, illness/death, memory loss, absent (not being subject to subpoena power)
- a. Privilege - Attorney/Client, 5th Amendment, certain rights to privacy
- b. Refusal - Refuses to testify
- c. Illness/Death - Ill or dead (balance w/ importance of information)
- d. Memory loss - As to the subject matter, not the details
Unavailability - Hearsay is only allowed when declarant is unavailable. 5 categories.
1. Dying Declaration - Only applies in civil and homicide matters, has to reasonably believe that dying is imminent, and has to be about the cause of that imminent death. They don't have to actually die.
- 2. Declaration Against Interest - Who had the opportunity to cross-examine and the motive to cross-examine on the same issues that there are now. Must have penal or monetary adverse effect. If criminal, must corroborate; only statements that are inculpatory are admissible.
- i. To Corroborate: Look at timing and circumstance, declarant's motive for making the statement, the declarant's possibility of repeating the statement and consistency in repeating it, to whom has the statement been made, the relationship between the declarant and the opponent of the evidence, the strength of independent evidence.
3. Former Testimony - Must be on the same kind of facts; have opportunity and motive to cross-examine; same party
4. Family History - Statement about declarant's birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood or marriage
5. Forfeiture by Wrongdoing - If you caused the unavailability of the witness, you forfeit the right to call them unavailable and the 804 exceptions. It must be intentional, but doesn't need to be criminal or illegal
Hearsay Exceptions Not Requiring Declarant Unavailability - Present Sense Impression; FRE 803(1)
It must be a description as they are perceiving the event. ID a photo lineup is applying recollection of a prior event; the crime. It is not as they are perceiving the event.
1. It has to describe the event.
2. Declarant has to have personal perception.
3. The statement that is being made had to have been contemporaneous w/ viewing the event. California's contemporaneous statement only goes to declarant's conduct.
4. Usually between 2-5 min.
5. No time to reflect, fabricate, think about what happened.
Hearsay Exceptions Not Requiring Declarant Unavailability - Excited Utterance; FRE 803(2)
Relates to startling event or condition, made while the declarant was undertress of excitement that it caused
1. No contemporaneous requirement if declarant is still excited from the event
2. Must be related to the event, stressful, and declarant is stressed
3. Must have perceived event
4. This requires a certain state of mind from the declarant. Are they responding to a question or are they blurting it out? Are the statements self-serving or are they unbiased?
Hearsay Exceptions Not Requiring Declarant Unavailability - Then Existing Mental, Emotional, or Physical Condition; FRE 803(3)
A person's own statement on their own condition is not barred, unless they are talking about a memory. Current conditions are admitted, past are not. The only exception is a will.
Hearsay Exceptions Not Requiring Declarant Unavailability - Statements for Purposes of Medical Diagnosis or Treatment; FRE 803(4)
A. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
B. There is no requirement that it has to be made to a doctor.
C. Statements about the of the injury is admissible if pertinent from perspective of medical professional; ok to relay it to someone to get to medical professional.
Hearsay Exceptions Not Requiring Declarant Unavailability - Business Records; FRE 803(6)
A. 1. Record
3. Person w/ knowledge or received from person w/ knowledge
4. Ordinary course
5. Regular practice procedure and duty
6. Authenticated by C/R
7. After satisfying requirements, not admitted if untrustworthy (but presumed trustworthy)
Not police reports (these are more public service), or hospital records (not their business to record fault). Patient to nurse would be SPO as long as patient is party. Nurse to chart is business record. Internet records ok as long as they are posted in a regular business conduct.
Hearsay Within Hearsay - FRE 805
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exceptionto the hearsay rule provided in these rules.
As long in the chain, there are hearsay exceptions along the line, admissible.
Public Records - FRE 803(8)
- A record or statement of a public office if:
- (A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
Learned Treatises - FRE 803(18)
A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.
Residual Exception - FRE 807
Note: Factors for trustworthiness
- (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against
- hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
- Factors for Trustworthiness:
- i) Relationship between declarant and witness
ii) Capacity of declarant at time of statement
iii) Personal truthfulness of declarant
iv) Whether declarant appeared to carefully consider his statement
- v) Whether declarant made other statements that
- were either consistent or inconsistent with proffered statement
vi) Whether behavior of declarant was consistent with content of statement
vii)Whether declarant’s memory might have been impaired due to lapse of time between event and statement
- viii) Whether statement is clear and factual, or vague
- and ambiguous
ix) Whether statement was made under form circumstances, such that declarant would likely consider accuracy of statement
- x) Whether statement appears to have been made in
- anticipation of litigation and is favorable to person who made or prepared statement
xi) Whether declarant was a disinterested bystander or rather an interest party
xii) Whether statement was corroborated by independent evidence or similar statements from others
Ancient Docs - FRE 803(16)
A statement in a document that is at least 20 years old and whose authenticity is established
2. Who raises clause?
3. What if accused had opportunity to confront earlier?
4. Do all elements need to be satisfied?
5. What is it designed to preserve
6. Elements of Clause
7. When is forfeiture exception allowed?
8. Are dying declarations generally testimonial?
9. What about things done in the ordinary courses of business? Crime labs?
1. Criminal, accused, confront, witnesses against
2. Accused raises clause
3. If accused had confronted their accusing witnesses at some point in time, confrontation clause is satisfied.
4. Confrontation Clause only bars statements if they meet all 5 elements.
5. It is designed to preserve the right to cross-examine and for the jury to observe the demeanor of the witness (judge their credibility)
- 6. a. Criminal
- b. Accused
- c. Testimonial
- i. The evidence is not given to quell an ongoing emergency, the person eliciting the statement for the purpose and expectation that it will be used in a criminal trial, and the person giving the statement expectes it to be used at trial.
- ii. Grandy jury testimony, custodial or in-custody examination, administrative hearing, affidavits
- a. Custodial interrogations by policelways testimonial (in station). But, anything duing an "ongoing emergency" is not testimonial.
- b. Business records and statements made in furtherance of a conspiracy usually are not testimonial.
- c. Lab techs have to testify
- iii. Depositions, confession
- iv. Anything where it would lead an objective peson that the statement is likely to be used at a later trial
- d. Unavailable declarant
- e. No prior opp. to cross-examine
7. Forfeiture exception is allowed only if party kept witness from testifying against you
8. Dying declarations are generally not testimonial
9. Things done in ordinary courses of business (hospitals) are not testimonial. Crime labs only do things purely for investigaotry/testimonial purposes.
1. Type of statement
2. What is needed to avoid Bruton?
1. Criminal, statement of one co-∆ powerfully incriminating non-testifying co-∆, testimonal, joint trial, co-∆ does not testify. NOT applicable to bench trails. Where co-∆ takes stand, incriminates another, and refuses cross-, mistrial.
2. Redaction is not enough. Completely remove all inferences to non-testifying co-∆. However, if there is a linkage, evidence is ok. Richardson v Marsh
1. FRE 201
2. 3 types of judicial notice facts
3. Criminal vs Civil
4. Legislative Facts...
5. Facts that are Subject to Legitimate Dispute
- 1. FRE 201 govens adjudicative facts. A judicially noticed fact must be one not subject to rsbl. dispute in that it is either generally knowing within territorial jsx of trial court or capable of accurate and ready determination by restort to sources whose accuracy cannot rsbly. be questions. Facts that are undisputed that is proven through reliable sources.
- a) Courts can either give judicial notice on its own or request that it be done. If it's being requested, court will ask for material/facts to show.
2. Adjudicative, Legislative, Other
3. In a criminal case, court may accept notice of adjudicative facts but gives jury option to accept it. In civil case, judicial notice binds jury.
4. If it is a legislative fact, jury bound to agree with judicial notice. Legislative facts are established facts, generally laws. These laws are universal.
5. Facts subject to dispute cannot have judicial notice.
1. Thayer v Morgan
2. Federal court follows...
3. Mandatory presumptions in criminal cases.
4. Legitimate Disputes...
Thayer: Bursting bubble theory. If someone establishes condition precedent, you have a balloon. If opposing party shows any evidence to rebut, not persuade, an element or condition, entire presumption is removed and jury does not hear of it at all.
Morgan: If valid assumption is given, and proponent proves burden, assumption is presumed and opposing party must show evidence against by preponderance of the evidence. Jury hears the evidence.
- 2. Thayer theory; FRE 301, which applies only to civil actions.
- a) In diversity actions in civil actions, state law applies. FRE 302
- b) If statute governs presumption, statute supersedes.
3) You can't have mandatory presumptions in criminalc ases. There may be permissive presumptions if other foundational facts are established, but jury cannot be told that they have to presume it. FRE 303.
4) Legitimate disputes or things commonly known remove presumptions.
2. 4 different methods
- 1. Purpose of impeachment is to discredit a witness
- a) Competency
- 1) Oath, Perception, Recall, Communication
- 2) Oath: Challenged by either witness not understanding in taking oath or won't take oath. If religious beliefs get in way, court won't let them testify. Can't impeach solely on religion unless religion has some bearing on facts.
- 3) Perception: Pointing to facts/issues calling to what witness could perceive
- 4) Recall: Recalling facts of case
- 5) Communication: Calls into question words witness uses
- b) Truthfulness: Convictions, prior bad acts, character as a liar
- 1) Convictions: FRE 609
- 2) Bad Acts: If you ask Q, they deny, no extrinsic evi.
- a) FRE 608(b): Specific bad act offered for impeachment purposes. For specific instances, needs to be intrinsic. For reputation, can be extrinsic
- b) FRE 608(a): Opinion and reputation evidence of character for impeachment purposes. Experts can testify to character, but not if witness is telling truth or not.
- c) Inconsistencies: Witness' prior inconsistent statements, contradiction. If they speak up on their own, extrinsic evidence allowed.
- 1) Generally, no extrinsic on collateral matters (issue so far removed from case at trial)
- 2) FRE 613: Prior inconsistent statements (own) v Contradictions (other). You can't use extrinsic if your purpose is to strictly impeach.
- d) Bias: Any reason which might lead witness to slant testimony either in favor of or against a party. It can be things that show like, dislike, a relationship, that witness is fearful of one of the parties, self-interest, membership in secret socities, etc.
- 1) If witness denies, can bring in extrinsic to show bias
- 2) ∆ in criminal cases have greater leeway to show bias in prosecutor's witness b/c of confrontation clause.
- 3) In civil case, no extrinsic.
3. Definition of Attack
4. Limitating Instruction Used For...
1. Bolstering back witness' credibility after it had been attacked. When you rehabilitate, it has to be responsive to attack.
2. Usually, you call a favorable witness; FRE 608(a).
3. An attack in when you breach in a witness to testify about character of one of your witnesses or by cross- that is so strongly coupled w/ explicit or implicit charges of corrupt purpose, bias, etc., then judge has discretion to say that was an attack.
4. Limitating instruction used to state evidence is used only for credibility.
Privileges: FRE 501
1. Types of Privileges
- 1. Attorney-client, adverse spouse, M.D., clergy, secrets of state
- 2. Attorney-client:
- a) Has to between atty and client
- 2) Statement made in course of atty/client relationship
- 3) Done in confidence
- 4) If made in furtherance of conspiracy, not protected.
- 5) For corps, if necessary for representation, privileged.
- 6) When atty. is just messenger, no privilege b/c no legal advice or authority.
- 7) Privilege doesn't protect identity of client, fee paid, or that client retained atty for specific topic. Only communications.
- 8) Oberservations made by lawyer that could've been made by 3rd party not confidential.