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Definition of hearsay
Out-of-court statements offered to prove the truth of the matter asserted.
Does not cover (i.e., the following are admissible as nonhearsay)
- statements offered to prove that a statement was made
- statements offered to show the effect on person who heard it
- statements offered as circumstantial evidence of declarant's mental state
- statements offered to impeach a witness
Statements specifically considered not hearsay.
Prior inconsistent statements made under oath at trial or hearing, used to impeach defendant's credibility. If not under oath, then still good for impeachment purposes. NY
: inconsistent statements signed and in writing OR under oath are admissible for substantive purposes in addition to impeachment purposes.
Prior consistent statements, under oath or not.
Prior statements of identification
Admissions by party-opponent (NY:
these are an exception to the hearsay rule, i.e., they are hearsay, but fall within an exception):
- judicial admissions
- adoptive admissions by silence
- vicarious admissions by agents, employees, or co-conspirators (NY: inadmissible hearsay unless agent was authorized to speak on event; co-conspirator testimony admitted only upon showing of prima facie case for conspiracy)
Unavailable declarant hearsay exceptions
- Exempt due to privilege
- Refuse to testify (not an excuse in NY)
- Lacks memory (not an excuse in NY)
- Dead, physically or mentally disabled
- Absent from subpoena jurisdiction
- Former testimoney - given under oath in a hearing where cross-exam was possible. In NY, can be used in civil actions to impeach declarant, if declarant is dead, 100 miles from courthouse, out of state, sick or infirm, or cannot be located.
- Dying declaration - by one who believes he is dying and that death is imminent. In NY, must be actually near death.
- Statements against interest - pecuniary, proprietary, civil, or penal interests and would not have said it if it were not true. In NY, against penal interest admissible only if absence due to death, outside jurisdiction, or invocation of 5th amendment rights.
- Statement of personal or family history - in NY, only allowed where declarant was related by bllood or affinity and only if statement made before controversy arose/
- Declarant unavailable due to party's wrongdoing
Hearsay exceptions where declarant's unavailability is immaterial
- Present sense impressions: describing or explaining event while perceiving it (a description of the event). NY: must show event actually occurred.
- Excited utterances: statement concerning startling event while under stress of exceitement caused by the event (a statement relating to the event)
- Statement of mental, emotional, or physical condition made at the time: statement of present intent admissible to prove conduct in conformity with that statement. NY: statements of phsyical condition inadmissible unles made to physician, but exclamations indicating pain (e.g., moans) are admissible. No admission of statements of memory or belief to prove facts related to the execution, revocation, identification, or terms of declarant's will.
- Statements for purposes of medical diagnosis or treatment: NY - must be statements regarding present symptoms, pain and sensations. Extends only to treating physicians (no nurses or intermediaries)
- Recorded recollection
- Business records: record of any act or event made in the course of regularly conducted business. Must be authenticated. Includes medical records but not records prepared in anticipation of litigation.
- Public records and reports
- Learned treatises (NOT available in NY, though may be used to impeach expert witness)
- Judgment of previous conviction
Catchall that allows hearsay to be admitted if:
- carries guarantee of trustworthiness
- offered as evidence of material fact and is more probative than any other evidence on point
- notice of nature of statement is given to other side in advance of trial
Only for civil actions in NY