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Hearsay is "a statement or assertive conduct which was made or occurred out ofcourt and is offered in court to prove the truth of the matter asserted."

How to approach hearsay
1. What is the statement
2. Who is the declarent
3. What is statement Offered for
4. Probative value
  • does the statement matter if it is true or false. If offered for the truth of the matter asserted it matters if the statement is true or not and what did
  • if we care that the statement was true or false then it is hearsay
  • does it depend on the truth or falsesity of the statement
  • does the person offering the statement want the jury to think the statement is true then it is hearsay

Dangers of hearsay
The use of hearsay testimony presents four main dangers:
(1) ambiguity;
(2) insincerity;
(3) incorrect memory; and
(4) inaccurate perception.
  • All of these relate to the fact that the person making the out-of-court statement (the declarant, as he is usually called) is not available for cross-examination.

Hearsay- declarant
The person who made the out-of-court statement is called the "declarant."

Hearsay- statement
An an oral or written assertion or non-verbal conduct intended to be an assertion
  • Machine generated isn't a statement

Statements or conduct that are not offered to prove the truth of the matter they assert aren't hearsay.
  • Verbal acts: A statement which gives rise to legal consequences is not hearsay, when offered to show those legal consequences. (Examples: The words of an offer for a contract; words of defamation.)
  • Effect on hearer or reader: A statement offered to show that the listener knew or didn't know ofsomething (not offered to show the truth of the thing known or not known) is not hearsay. (Example: D is being charged with a crime that requires that she knew fact A. Testimony that X told D A, offered to show that D knew A, is not hearsay.)
  • Declarant's state of mind: Similarly, a statement offered to show the declarant's state of mind (including knowledge and intent) is nonhearsay. (Example: D is charged with statutory rape, in a urisdiction where a reasonable mistake as to the victim's age is a defense. Victim's testimony, "Before we had sex, D told me, 'I know you're only 15' ," offered to prove D knew Victim was 15, is nonhearsay.)
  • Nonassertive conduct: Conduct that is not intended as an assertion is not hearsay.
    (Example: X opens an umbrella. Assume that X didn't intend to assert, "It's raining." To prove that it was raining, W may testify, "X opened his umbrella," and there's no hearsay violation.)
  • Assertions and assertive conduct offered for different purpose: Similarly, an assertion (or assertive conduct) offered to prove the truth ofa matter other than the one asserted, is not hearsay. (Example: X calls D's premises, and says, "I want to bet $10 on Cigar in
    the 4th race." This is an assertion, but it's not hearsay if offered to show that D's premises were used to take wagers.)

Hearsay- truth of the matter asserted
  • Why is the evidence being offered
  • Example is witness will testify Dave killed Victor. Hearsay if Dave on stand for murder but not hearsay if on the stand if Dave spoke English
  • The action of handing over the shirt is hearsay since the declarent wife and the statement was handing over the shirt which was to show that this was the shirt her husband was wearing (which is for the truth of the matter asserted)
  • Does the probative value depend on if the statement is true or false -> which depends on the declarent who is not available to testify the statement to be true
  • In order to be an assertion it must be intended to be an assertion by an actor
  • an action is non-verbal conduct not intended to be an assertion

Is an oral contract hearsay?
  • An oral contract
  • Oral contracts are not hearsay
  • Words of a contract person is allowed to say what the terms of the contract are.
  • Oral contracts have to be proven by the words the party spoke
  • The point is that the statement was said and the mere saying of it forms the contract

Hearsay that has more then one purpose
  • if offered for only the purpose of the matter of truth then hearsay and general rule is inadmissible; however, if there is another purpose such has showing notice when someone slips then not hearsay
  • must do limiting instruction and 403 analysis

Prior inconsistant statement made by a witness (hearsay exclusion)
A prior inconsistent statement by the witness is admissible, if it was given under oath at a trial, hearing or deposition.
  • Saying a different thing then they said before to discredit the person who made the statement
  • If made to show he said something inconsistent with testimony (i.e. impeachment) then it isn’t being offered for the truth of the matter asserted
  • declarent must have made the statement in the current present trial (not a later trial)

Prior consistent statement (hearsay exclusion)
A prior consistent statement by the witness is admissible if and only if it is "offered to rebut an express or implied charge against [the witness] of recent fabrication or improper influence or motive."

  • Prior statement Consistent statement only comes in if the motive to fabricate the statement arose prior to the statement being made

Prior identification (hearsay exclusion)
A statement of "identification" of a person (made after the declarant
"perceived" the person) is admissible as long as the declarant testifies at trial, whether or not the identification was made under oath or at a formal proceeding.

Statements made by the parties (hearsay exclusion)
The general rule regarding admissions is this: A party's words or acts may be offered as evidence against him.
  • Party is an opponent when on the opposite side of the person offering the statement
  • Requres that the statement turns out to be contrary to the party's present position

Admissions by conduct (hearsay exclusion)
(1) The party must have been present and capable of hearing;
(2) The statement must have been understood by the party;
(3) The subject matter must have been within his knowledge;
(4) The party must have been physically and mentally able to deny the accusations;
(5) The party must have had the opportunity and motive to deny the accusations; "The statement itself must be such as would, if untrue, call for a denial under the circumstances (i.e. a reasonable person would have denied accusatory statement under the particular circumstance)

Adoptive statements by silence
  • if a reasonable person would have denied the statement, it may be admitted against the
    declarant as an adoptive admission.
  • A person's silence will be treated as a "statement," and thus possibly hearsay, only if the silence is offered for as an assertion for the truth of the matter (guilt).
  • Silence is hearsay when prosecution is claiming that D's silence amounts to an assertion of his guilt, used to prove the truth of the matter asserted (the guilt).
  • Must be offered by the opponent party
  • Can adopt by silent only if a reasonable person would have denied the statement and should have denied
  • Party who made the statement must have: (i) heard; (ii) Understood; (iii) Acquiesced in its truth (accepting as their own as if the party said it)
  • Bring up situations and wouldn’t respond and how a reasonable person wouldn’t respond in that situation
  • sufficient foundation was laid where the defendant responded with comprehension to other inquiries at the same time
  • Almost always presents a relevancy problem
  • Only relevant if the party believes the statement to be true

Explicitly authorized admissions (hearsay exclusion)
Where the party has expressly agreed that his agent may make a statement on the particular subject. Thus if A says, "On this subject, refer all questions to my associate, B," anything B says on the subject will be admissible against A as if it were said by A.

Vicarious admissions by agents (hearsay exclusion)
admits a statement offered against a party if it was made "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
  • statements by counsel will be admitted as agency admissions, so long as there is some evidence to indicate that the attorney was authorized to make the statements.
  • If the accident happened and then makes statement statement comes in only if made while employed because if fired or not working at the company there could be bias against the company
  • Don’t have to be authorized only employed for the statement to come in
  • Within the course and scope of employment look at their day to day duties if the statement is related then within the scope of employment
  • A statement alone that employee is authorized is not enough must be independent collaborating evidence that shows relationship between the parties

Co-conspirator admission (hearsay exclusion)
statements made by one coconspirator are admissible against other co-conspirators, so long as the statement was
made during the course ofthe conspiracy and in furtherance of it.
  • This rule of mutual liability for actions applies to "verbal acts" just as much as it does to physical acts. Statements made by one conspirator in furtherance of the conspiracy are thus admissible against all conspirators if conspiracy is charged, since the statement is part of the illegal plan of action.
  • Test, as applied to co-conspirator hearsay, would be: whether the independent
    evidence, standing alone, presents a fair possibility that the defendant and the declarant are coconspirators.

Made during the course of the conspiracy (hearsay exclusion)
  • must show there was a conspiracy before the statements comes in
  • judge must decide by the preponderance of the evidence (more likely then not that the evidence is true / 50% +1) can show there is a conspiracy
  • must look at the collaborating evidence in showing incriminating in conjunction with the statement is enough i.e. picking up the drugs

In futherance of a conspiracy (hearsay exclusion)
The statement must be made with the intent to further the conspiracy. If the statement was simply idle chatter by a conspirator, or simply serves to blame or "finger" people as conspirators, it will not be admissible under this exemption.
  • a conspiracy is terminated when its central criminal goal has been achieved or abandoned.
  • Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members of the conspiracy.
  • Achieving goal: Similarly, the conspiracy will be treated as ending when it reaches its goal, and statements made after that time will not be admissible.

Unavailability (Hearsay exceptions)
The exceptions to the hearsay rule require that the declarant be unavailable to testify at trial.
FRE 804(a) defines "unavailability as a witness" to include situations in which the declarant. PRIMA
  • Privililage 
  • Refuse to testify
  • Illness / death
  • Memory – lack of
  • Absence from the subpoena power and won’t testify

Unavailability - Privilege (hearsay exception)
a declarant is "unavailable" if he or she "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement."
  • Witness has to take the oath and assert the privilege in open court and that the privilege applies to this situation
  • Protects certain rights and certain protections but not everything the witness has to offer

Unvailablity - Refusal to testify (hearsay exception)
  • persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
  • correct procedure is to require the witness to testify outside of the jury's presence and the judge should order the witness to testify subject to the threat of contempt. If the witness still refuses, then the witness is unavailable under Rule 804(a)(2).

Unavailablity - lack of memory (hearsay excpetion)
nature and duration of the testimony against importance of the testimony
  • Burden of proof to use hearsay is satisfied might not return and have a lack of memory at this time
  • Doesn’t need to be proven by an expert
  • In determining the court must weight chances of memory coming back coupled with how long it will come back and how important this testimony is
  • Must weight nature and degree of memory loss with importance of the testimony
  • A continuous may be necessary or may not be necessary
  • must be a lack of memory to the subject matter of questioning and not just one fact or question

Unavailablity - illness or death (hearsay exception)
  • if condition is not permanent then judge should allow reasonable time for recovery
  • nature and duration of illness against importance of the testimony

Unavailability - absence of jurisdiction (hearsay exception)
  • must demonstrate that it has not been possible to take a deposition.
  • requires an attempt to dispose

Former Testimony (hearsay exception)
A report of a witness’s testimony in a prior trial is admissible in the present proceeding, as an exception to the hearsay rule, if there is:
  • (i) Identity of the parties A report of testimony in a prior trial is admissible whenever the adverse party in the prior trial had an opportunity and similar motive to cross-examine the declarant as does the adverse party in the present proceeding.
  • (ii) Sufficient unavailability
    of that witness in the present proceeding
  • (iii) Similar motive The way to determine whether or not motives are similar is to look at the issues and the context in which the opportunity for examination previously arose, and compare that to them issues and context in which the testimony is currently proffered.

Dying declarations (hearsay exceptions)
  • (i) Must be a civil or homicide case
  • (ii) statement made while declarent believes death is imminent death. Strong belief to indicate death is likely or imminent is enough to suffice as believing death is imminent.
  • (iii) Must relate to circumstances of killing: the declaration must relate to the causes or circumstances of the killing.

Statements against interest (hearsay exclusion)
There is a hearsay exception for declarations which, at the time they are made, are so against the declarant's interest that it is unlikely they would have been made if they were not true.

A hearsay statement may be recieved in evidence if:
  1. the person who made the statement is not a party to the action, and is now unavailable;
  2. the statement was sufficiently against important interests of the declarant when madeso that a reasonable person in the same position would not have made the statement unless she believed it to be true

    Statements against interest vs admissions
    1. A declaration against can be a statement by a third party- it need not be a statement by a party to the litigation, as with admission.
    2. "Unvailability" is required to lay the foundation for a declaration against interest, but not for an admission
    3. A declaration against interest must be based on the personal knowledge of the declarant; an admission need not.
    4. A declaration against interest must be "against interest" when made- an admission need only be inconsisten with the present position taken by the declarant

    Statements against interest- criminal liablity
    Statement offered by a criminal defendant to show her own innocence (by proof of out of court declarations by a third person admitting the crime charged) are admissible only if there are "corroborating circumstances that clearly indicate the trustworthiness of the statement."
    • i. Motive: Whether the declarant had an apparent motive to lie.
    • ii. General character: The general character of the declarant. Thus if Declarant is a convicted criminal (especially a perjurer), his confession will be much less likely to be admitted.
    • iii. Persons hearing statements: Whether more than one person heard the statements. The more people who testify to having heard the out-of-court declaration, the more likely it is that the declaration was at least made
    • iv. Spontaneous: Whether the declaration was made spontaneously (if so, it is more likely to be received).
    • v. Other: The timing of the declaration, and the relationship between the declarant and the witness.
    • vi. External connections: Whether there is other evidence linking the declarant to the crime.

    personal or Family history (hearsay exception)
    a person's reputation within his family, regarding some aspect of his birth, marriage, blood relationship, etc., has always been
    given a hearsay exception

    covers reputation "among a person's associates" (e.g., his business colleagues), and also his reputation "in the community."

    It covers reputation as to the person's "birth,adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal orfamily history."

    Forfeiture by wrong doing (hearsay exception)
    The "forfeiture by wrongdoing" exception is used most commonly
    against criminal defendants who attempt to intimidate or otherwise remove witnesses against them. The out-of-court statements to which 804(b)(6) is often applied include:
    • Statements made by W while under police interrogation
    • Statements made by W in a grandjury proceeding or preliminary hearing;
    • Statements made by W in W's own criminal trial, or in a criminal trial of some third
      person. (The former testimony exception does not apply here because in such a situation, D, the present defendant, would typically not have had "an opportunity and similar motive to develop the testimony" by direct or cross examination, as required
      by Rule 804(b)(l).)

    Present sense impression (hearsay exclusion not requiring declarant's unvailability)
    A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
    • the court investigates the circumstances of the statement to determine whether the declarant had significant time for reflection.
    • the sponataneity and contemporaneity of the declaration are deemed to be assurances of its trustworthiness, and the words used are regarded as the best evidence of the then eisting sense impression experienced by the observer
    • Describing something spontaneously
    • Takes away the ability to reflect
    • Made immediately while being perceived
    • Describe the event as the actual event is happening
    • Look at factors that memory might become jaded. Generally not longer then 24 minutes.
    Present sense impression (hearsay exclusion not requiring declarant's unvailability)
    A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

    Excited utterance (hearsay exception not requiring declarant's unavailability)
    A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
    • A statement made relating to the event and while under the stress and the event caused the stress
    • Under the stress caused by the event
    • Analyze the declarant’s demeanor
    • Must be able to point to physical characteristics to show person was stressed or excited under the situation
    • Must lay a foundation that the declarant had personal knowledge of the event
    • Must witness the person saying the statement
    • Or the statement themselves must lay the foundation themselves
    Difference between an excited utterance exception and the present sense impression exception
    • (1) an excited utterance must relate to a "startling" event or condition while a statement of present sense impression may describe any event or condition;
    • (2) the present sense impression must "describe" the event, while the excited utterance need only "relate" to the event the excited utterance exception thus allows a broader scope of subject matter coverage than does the present sense impression exception; and
    • (3) the excited utterance exception of Rule 803(2) does not contain an express contemporaneity requirement, as does Rule 803(1).

    Statements of then existing emotional or physical condition (hearsay exception not requiring declarant's unavailability)

    • It does not include a statement of memory or belief about a past condition.
    • It does include statements of future intent to do something with a third person (unique knowledge).
    Then existing state of mind statement
    • Has to do with what that person is feeling right then and there
    • Must show the declarant’s state of mind and can’t show someone else’s state of mind
    • Cannot be their memory; must be what they are then feeling or experiencing
    Only allowance of past memory is for a will Hillmon doctrine
    • declarant’s state of mind of what the declarent was going to do in the future
    • Statement can be used to show conduct in the future
    • If he expressed his intent to do something then can use expression of intent that he followed through with his intent
    • Can offer person’s intent that they acted in accordance with that intent
    • Isn’t that they didn’t just say the expression but acted out the event

    Purposes of medical diagnosis (hearsay exception not requiring declarant's unavailability)
    • Declarant must make a pertinent statement for the purpose of medical diagnosis or treatment
    • For a statement to be pertinent must be decided by the doctor that the statement assists the diagnosis or treatment
    • If the declarant states to someone else it doesn’t matter so long as a doctor says it is pertinent
    • Past history and systems can be brought in
    • Statements that relate to the cause of the injury

    Purposes of business records (hearsay exception not requiring declarant's unavailability)
    • Memo of something happening made at or near the time with a person of knowledge kept in regular business activity and regular course of business
    • 1. Must have a writing
    • 2. Done in the routine of a business
    • business must rely upon the information contained in the record
    • 3. Personal knowledge of the matter recorded
    • 4. The entries must have been made "at or near the time" of the matter recorded while in the course of the business

    Learned treatis (hearsay exception)
    • published form on a subject of history of medicine history or art

    Confrontation clause
    An out-of-court testimonial statement by W can't be admitted in a criminal case against D unless W is made available for cross-examination at D's trial (or was subject to cross by D at the time W made the statement), but an out-of-court non-testimonial statement by W can be admitted against D without any Confrontation Clause problem even if W is never made available for cross by D.

    Crawford v. Washington
    • Testimonial and is unavailable
    • Anything where there was no opportunity for the defendant attorney to cross-examine
    • Statements that an objective person will believe it will be used in court
    • Admissible only if defendant had the opportunity to cross-examine
    • Custodial interrogation of a witness is testimonial
    • Testimonial means expects statement will be used in the court the way it is suppose to be

    What are testimonial statements
    The rough meaning of "testimonial" is "bearing testimony." The idea is that the declarant has some idea that the statement will be or may be used in a serious legal proceeding, such as a criminal investigation
    • So a casual of hand remark to a friend or acquaintance who happens to be standing near the declarant would typically not be testimonial.
    • In the case of a police interrogation, a testimonial statement is one where "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution
    • Crime-scene interview: Statements made by W under police interrogation at a crime scene will be testimonial even if W is not under suspicion, as long as the police's focus is on asking the questions is to find out "what happened" (with a view towards "solving the case") rather than to deal with a present emergency.

    What are non-testimonial statements
    the circumstances surrounding them don't suggest that the statement will be used in a later proceeding. Davis v. Washington makes it clear that under Crawford,
    non-testimonial remarks are automatically freed from Confrontation Clause scrutiny.
    • statements by a co-conspirator during the course of the conspiracy, and in furtherance of it
    • excited utterances, spoken to a friend or relative who happens to be nearby, or spoken to a 911 operator under emergency conditions;
    • present sense impressions, spoken to a friend or relative who happens to be nearby;
    • state-of-mind statements, spoken to a friend or relative who happens to be nearby
    • dying declarations, spoken to a friend or relative, and not intended to be used in an investigation or prosecution

    Confessions by Accomplices
    Bruton held that if D1 confesses in a way that implicates himself and D2, DI 's confession can't be used at their joint trial unless D1 takes the stand, and that's true even if the jury is instructed to regard the confession only as evidence against D1.
    • Despite the judge's limiting instruction, and despite the fact that D1' s confession is, technically, only evidence against D1 and not D2, D2's Confrontation Clause rights have been violated merely by the jury's hearing of D1's confession. That's because the jury could not be expected to follow the judge's limiting instruction.

    Judicial notice
    A shortcut to prove. it saves the court and litigant that a reasonable person would not question. Once a judge takes judicial notice. The fact is established without additional notice.

    A reasonably disputed fact then court cannot take judicial notice

    A court shall take judicial notice if requested by a party and supplied with the necessary information.

    Adjudicative vs. legislative facts
    Adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, and their businesses.

    Legislative facts are ordinarily general and do not concern the immediate parties. Legislative facts are established truths, facts, or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.

    Inference that the court instructs the jury on. The assumption is usual a logical or social assumption can prove a fact exist. The presumption is something else happened as a result of it

    Conclusive / irrabutal presumption
    If you find the first two facts to be true then you must find the following consequence occurred

    Rebuttal presumption
    First two consequence is true unless opposing side offers evidence to refute or challenge
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