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Hearsay

 

In General (FRE 801-06)

  1. Statement of the rule: The rule against hearsay prohibits out-of-court statements from being offered into evidence to prove the truth of the matter asserted.

    • “Out-of-Court” Statement: A verbal, written, or nonverbal act intended as an assertion (e.g., pointing or the nodding of a head).

  2. Declarant and witness: The declarant is the person who made the out-of-court statement. The witness is the person who seeks to testify that the statement was made. Note that a witness can be both the declarant and the witness. A witness’s own prior statement can be hearsay if it fits the definition.

  3. Role of the judge: The judge decides preliminary questions of fact upon which admissibility depends.

    Example: The judge decides whether a declarant is unavailable when the declarant’s unavailabilty is required for the admission of a statement (see Hearsay>Hearsay Exceptions).

  4. Ways to overcome hearsay rule:

    1. It falls within a specific exception, or is defined as nonhearsay by the FRE.

    2. It is conduct that is not directly assertive of a fact.

    3. It is not being offered to prove the truth of the matter asserted. This includes:

      • Verbal acts or legally operative facts: When the words themselves constitute legal acts (e.g., words in a defamation case, words in a bribery case, and words of acceptance in contract actions).

      • Words that show state of mind: When the words demonstrate the speaker’s then state of mind, which is relevant to the matter (e.g., expressions of fear when self-defense is claimed as an affirmative defense).

  5. Impeachable if admitted: When an out-of-court statement is admitted into evidence, the hearsay declarant may be impeached just as if the declarant was a witness at trial.

  6. Double hearsay: When an out-of-court statement offered as evidence contains another out-of-court statement, both layers of hearsay must be found separately admissible.

    Example: If a witness wants to testify that “Tim told me that Manny said . . .” then both Tim and Manny’s statements are hearsay. Consequently, a separate ground for admissibility must be found for each statement before the witness can testify.

 
 

Statements “Not Hearsay”

There are several types of statements that are statutorily defined as nonhearsay, thus admissible.

  1. Party admission: An out-of-court declaration of a party to the lawsuit is admissible if the statement is:

    1. Offered against that party; and

    2. Inconsistent with the party’s present position.

      • Co-conspirator statements admissible: Statements by a co-conspirator in a crime are admissible against a party, as if the party had made the statements herself.

      • Employee’s statements admissible if within scope: An employee’s statements are admissible against an employer if the statements were made within the scope of the employment relationship.

      • Adoptive admissions admissible: A person may adopt the statement of another person, and such adoption is admissible as evidence, if they remain silent where a reasonable person would have denied the statement (e.g., an accusation).

      • Personal knowledge of facts not required: The declarant need not have knowledge of the facts to which they refer in order for the evidence to be admissible.

        Example of party admission: The declarant states “my secretary mailed the check.” It does not matter if the statement was against the declarant’s interest at the time of the statement, or if the declarant knew if the check was mailed. The only relevant inquiry is whether the statement was made by a party to the lawsuit and is being offered against the party’s current position.

  2. Prior sworn inconsistent statement of the witness: A witness’s own prior sworn inconsistent statement is admissible to prove the truth of the matter asserted.

  3. Prior consistent statement of a witness: A prior consistent statement is admissible as substantive evidence only to rebut a charge of recent fabrication and if the statement was made prior to the motive to fabricate.

  4. Prior statements of identification by a witness: The prior identification of a person is admissible for its truth if the declarant is presently testifying.

 
 

Exceptions: Availability of Declarant Immaterial

The following hearsay exceptions do not require the declarant to be unavailable for the evidence to be admissible for its truth.

  1. Present sense impression: A spontaneous statement made by a declarant that describes an event at the time it is happening, or very shortly thereafter, is admissible.

  2. Excited utterance: An out-of-court statement made by a declarant while under the stress of an exciting or startling event relating to that event is admissible.

    • Note: The amount of time between the event and the statement is a key factor in determining whether the declarant was still under the stress of the event.

  3. Present state of mind or intent: A declaration of a present state of mind, or intent to do something in the not-so-distant future, is admissible as substantive evidence.

  4. Declaration of physical condition:

    1. Declaration of present bodily condition: A declarant’s spontaneous statement regarding his or her bodily condition at the time is admissible.

    2. Past bodily condition: Statements of past pain, suffering, or medical history including the external cause thereof, made for the purposes of treatment or diagnosis by a physician, are admissible. Statements of past bodily condition made for any other purpose are inadmissible.

  5. Business records: Records are admissible if they are:

    1. Made in the regular course of business;

    2. Records about which the witness has personal knowledge; and

    3. Made contemporaneous to the event to which they refer.

      • Absence of records is admissible: The absence of a record where one would normally exist is admissible to prove the nonoccurrence of an event or nonexistence of a fact.

  6. Official records: Records, reports, or data compilations of public agencies and officials made within the scope of their duties are admissible for their truth.

    • Exception: Police investigative reports are inadmissible against a defendant in a criminal case.

  7. Records of religious organizations: Statements of birth, marriage, divorce, death, or other information relating to family history that are regularly kept by religious organizations are admissible.

  8. Family records: Statements relating to family history contained in family writings, charts, Bibles, inscriptions, etc., are admissible.

  9. Ancient documents: Documents that are twenty or more years old are admissible (as long as authenticity is established).

  10. Treatises: To the extent they are relied upon by an expert witness, statements contained in learned treatises (i.e., scholarly materials) may be read into evidence (but not received as exhibits).

  11. Judgment of previous felony conviction: A judgment of previous felony conviction is admissible in both civil and criminal trials to prove facts essential to the judgment. In a criminal case, however, the judgment of previous felony conviction may only be used to prove facts against the accused; it may be used only for impeachment purposes against any of the other witnesses.

  12. Market reports: Information contained in reports, and other compilations providing data of the financial markets, are admissible if relied on by the general public or those in particular occupations.

  13. Reputation evidence: Reputation evidence is admissible to prove a person’s character; personal or family history; land boundaries; and/or a community’s history.

  14. Recorded recollection: A writing by the witness, made prior to testifying, is admissible to prove the contents of the writing if the witness cannot remember the facts contained therein, and the writing was made while the facts were still fresh in her mind.

  15. Residual exception: A statement not covered by any specific, above-mentioned exception may be admitted if the judge is convinced, through circumstantial evidence, that it is material, trustworthy, more probative than other evidence relating to the fact, and if it would serve the interests of justice to admit the evidence.

 
 

Exceptions: Declarant’s Unavailability Required

The following exceptions require the declarant to be unavailable at trial. Unavailabilty is defined as a declarant who, through no malfeasance of the proponent of the evidence, cannot testify because of:

  • Privilege: The declarant is exempted from testifying on the grounds of privilege on the subject matter of the statement.

  • Refusal: The declarant refuses to testify despite a court order.

  • Memory loss: The declarant is unable to recall information that he or she once knew.

  • Death/illness: The declarant is deceased or too ill (physically or mentally) to testify.

  • Other reasonable absence: The declarant is absent for other reasonable grounds.

    1. Former sworn testimony: When a now-unavailable declarant testified in a former trial, his or her testimony is admissible if it is:

      1. The same subject: The testimony regarded the same subject matter as the current proceeding.

        Example: The prior proceeding was a suit for personal injury. The defendant in the prior proceeding now seeks contribution (reimbursement of money paid to the plaintiff) from another tortfeasor. Here, both proceedings involve the same incident and subject matter.

      2. Cross-examined: The declarant was cross-examined by the same party or a party in privity with the party against whom it is offered.

        • Note: Do not confuse this hearsay exception with the exception admitting prior inconsistent statement given under oath. In that case, the declarant is the witness. Under this exception, the declarant must be unavailable.

    2. Declaration against interest: A declaration of a person now unavailable that was against that person’s pecuniary, penal, or proprietary interests at the time of the statement is admissible for its truth.

      • Corroboration required in criminal cases: When a statement against penal interests is offered to help the accused (e.g., another person’s confession), corroboration is required for it to be admissible.

      • Note: Unlike the party admission nonhearsay exception, this exception requires the statement to be against the declarant’s interests at the time of the statement.

    3. Dying declaration: Statements made while a declarant was under a settled expectation of impending death (whether or not he or she actually died) about the cause or circumstances that gave rise to the expectation.

      • Dying declarations are admissible in any civil action or homicide prosecution, but they are inadmissible in any other criminal prosecutions.

    4. Statements of personal or family history: Statements by a now-unavailable declarant regarding their own—or a family member’s—birth, adoption, marriage, divorce, legitimacy, blood lineage, ancestry, or the like are admissible as substantive evidence.

    5. Residual exception: A statement not covered by any specific abovementioned exception maybe admitted if the judge is convinced through circumstantial evidence that it is material, trustworthy, more probative than other evidence relating to the fact, and if it would serve the interests of justice to admit the evidence.

Examples of Objectionable Questions
 
Type   Question
 
Argumentative   Do you find it strange that the defendant bears a striking resemblance to the shooter?
 
Asked and Answered   Q: Did you see the shooter? A: No. Q: Are you sure?
 
Assumes Facts Not in Evidence   (First question to first witness) In which hand did the shooter hold the gun?
 
Calls for a Narrative   Tell me what you know about this case.
 
Calls for Speculation   How angry was the shooter?
 
Compound Questions   Did you see the shooter, and if you did, what did he look like?
 
Draws a Conclusion   When you saw the shooter, what did he look like?
 
Harassing the Witness   Why didn’t you see the shooter? Answer me, are you blind?
 
Hearsay   What did she say to you?
 
Irrelevant   What did you eat for lunch today?
 
Leading   Isn’t it true that you saw the shooter?