Evidence

Hearsay


Hearsay is a statement that the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement. FRE 801.

This is a French rule.

Hearsay is not admissible unless otherwise permitted. FRE 802.

The main purpose of the hearsay rule is to prevent people's intentions to deceive, but also to guard against faulty memory, perception, and narration.

If a truth is not the intended assertion but only implied thereby, it is only circumstantial evidence of the declarant's state of mind and therefore not hearsay.

  • E.g., someone asking to place a bet implies the intended recipient is a bookie, but he was only intending to communicate that he wanted to place a bet.
  • Although, the minority position established in Stoddard, holds that such a truth is an implied assertion and barred by the hearsay rule.
Hearsay That Is Not Hearsay (Totally Not Exceptions)

A witness's prior statements are admissible to show that his testimony is inconsistent with them, that it is consistent if his credibility is attacked, or to identify someone he perceived earlier. FRE 801(d)(1).

  1. A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
    1. is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
    2. is consistent with the declarant’s testimony and is offered:
      1. to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
      2. to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
    3. identifies a person as someone the declarant perceived earlier.
  2. An Opposing Party’s Statement. The statement is offered against an opposing party and:
    1. was made by the party in an individual or representative capacity;
    2. is one the party manifested that it adopted or believed to be true;
    3. was made by a person whom the party authorized to make a statement on the subject;
    4. was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
    5. was made by the party’s coconspirator during and in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

A prior statement under FRE 801(d)(1)(A) uses the same standard as FRE 613 but is better because it can be used to prove the truth of the assertion. FRE 613 only allows it for impeachment purposes.

Under FRE 801, the earlier statement must also be under oath and the declarant must then testify otherwise at trial and be cross-examinable.

  • Forgetfulness is not enough.

A prior consistent statement under FRE 801(d)(1)(B) cannot be introduced if it was made after the alleged improper influence.

  • If the bias existed for both statements, showing that the statements were the same both times does not show that the bias did not influence them.
Adoption

Adoption is when one makes a statement that he did not say his own. It is admissible against an opposing party under FRE 801(d)(2)(B).

Adoption by Silence

For silence to constitute an adoption, the adopter must have:

  1. Heard
  2. Had an opportunity to respond
  3. Been in circumstances that called for a response
  4. Failed to respond

Silence is not an adoption after receiving a Miranda warning. Circuits are split as to whether it may be an adoption pre-Miranda.

A statement cannot show that one is an agent/coconspirator under FRE 801(d)(2)(E) alone. There must be corroborating circumstantial evidence.

Verbal Object

Verbal objects are short, easy-to-remember writings, such as "Sears" on the side of a truck, a street name on a sign, a business's name on a business card, or one's initials on a laundry tag.

Verbal objects are not hearsay.

Verbal objects are usually also going to be inscribed chattels.

To reverse under FRE 103 you must show grounds, parts, parties, and purpose.

Actual Hearsay Exceptions
  1. Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
    1. is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
    2. refuses to testify about the subject matter despite a court order to do so;
    3. testifies to not remembering the subject matter;
    4. cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or
    5. is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
      1. the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
      2. the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).
    But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
  2. The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
    1. Former Testimony. Testimony that:
      1. was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
      2. is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
    2. Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
    3. Statement Against Interest. A statement that:
      1. a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
      2. is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
    4. Statement of Personal or Family History. A statement about:
      1. the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
      2. another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
    5. [Other Exceptions .] [Transferred to Rule 807.]
    6. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
  • Courts will be harder on the prosecution and its ability to make witnesses available than criminal defendant.
  • Under FRE 804(b)(3), the statement against interest cannot be an affirmative defense or something. Only the inculpatory parts of a testimony may be admitted. It must be based on personal knowledge however, unlike an FRE 801(d)(2) statement by a party opponent, and corroborating evidence must indicate its trustworthiness.
  • Death is not required for FRE 804(b)(2), but the declarant must believe that sure death is eminent.
  • Under FRE 804(b)(1)(B):
    • In a civil case, the statement must have been against a predecessor in interest with similar motive and opportunity and who had the opportunity to cross.
    • In a criminal case, the statement must have been against the same defendant with similar motive and opportunity and who had the opportunity to cross.
  • Predecessor in Interest

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

  1. Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
  2. Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
  3. Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
  4. Statement Made for Medical Diagnosis or Treatment. A statement that:
    1. is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
    2. describes medical history; past or present symptoms or sensations; their inception; or their general cause.
  5. Recorded Recollection. A record that:
    1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
    2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and
    3. accurately reflects the witness’s knowledge.
    If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
  6. Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
    1. the record was made at or near the time by — or from information transmitted by — someone with knowledge;
    2. the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
    3. making the record was a regular practice of that activity;
    4. all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
    5. the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
  7. Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
    1. the evidence is admitted to prove that the matter did not occur or exist;
    2. a record was regularly kept for a matter of that kind; and
    3. the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
  8. Public Records. A record or statement of a public office if:
    1. it sets out:
      1. the office’s activities;
      2. 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
      3. in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
    2. neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.
  9. Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
  10. Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if:
    1. the testimony or certification is admitted to prove that
      1. the record or statement does not exist; or
      2. a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
    2. in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

...

  • FRE 803(1)–(4) all require personal knowledge of the event.
  • FRE 803(1) requires it to be very immediately after an event, before one had time to form intent to fabricate.
  • FRE 803(3) does not allow anything based on memory, but allows, like, "I'm afraid of him," because it is a present cause.
  • Hillmon Doctrine

    Second-hand intent allows evidence to come in under FRE 803. I.e., "I'm doing this with him," to show that the other person did that too.

    Most courts require corroborating evidence.

  • FRE 803(4) allows statements made to friends and family for medical care.
  • An accident report is not a record of a regularly conducted activity under FRE 803(6) & (7).
  • FRE 803(6) requires a custodian to testify as to how records were made and kept, but not as to the contents of the record.
  • Police activity can sometimes come in under FRE 803(8), such as fingerprinting.
  • FRE 803(16) allows "ancient documents"—documents more than 20 years old.
  1. 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.
  2. 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.
Hearsay Within Hearsay

For hearsay within hearsay to be admissible, both statements must be independantly admissible. FRE 805.

If admissible hearsay or the admissible or FRE 801 totally-not-hearsay is admitted, the declarant's credibility may be attacked and supported as if he were a witness himself. FRE 806.

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