Hearsay

*True or False?* Learned Treatise is never admissible as substantive evidence under the hearsay rule, and may be used only for impeachment purposes.

*FALSE* The Federal Rules recognize an exception to the hearsay rule for learned treatises. The FRE substantive admissibility of a learned treatise if the treatise is: (i) Called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; AND (ii) Established as reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. The relevant portion of the treatise usually is not shown to the jury, but is admissible by being *read into the record*

Admissions by a party-opponent are considered nonhearsay under the Federal Rules. For a party's statement or act to qualify as an "admission," it must___________.

Correct Answer: concern a fact relevant to the case An admission is a statement made or act done that amounts to a prior acknowledgment by one of the parties to an action of a fact relevant to the case. Lack of personal knowledge does not necessarily exclude a party's admission. An admission may even be predicated on hearsay. To be an admission, the statement need not have been against the party's interest at the time it was made. An admission may be in the form of an opinion. The only requirement is that it concern one of the relevant facts.

On the issue of whether Yuckl was the child molester, a police officer testifies that when he asked the child-victim whether the perpetrator had a beard, the child nodded his head.

Hearsay by assertive conduct; nodding, which translates, "Yes, the man had a beard."

On the issue of whether the traffic light was red or green, the witness testifies that he was told by Decla that the light was green.

Oral Hearsay

Compare--State of Mind Exception

Statements that reflect directly (rather than circumstantially) on the declarant's state of mind are hearsay but are admissible under an exception to the hearsay rule. Many courts have used this "state of mind exception" to admit all declarations that reflect on the declarant's state of mind without regard to the fact that many could simply be admitted as nonhearsay. Although the ability to distinguish the two may be helpful for exam purposes, as a practical matter, the distinction makes little difference because the result (admissibility of the statements) is the same.

Present Recollection Revived

The "past recollection recorded" exception is in contrast to "present recollection revived," which allows a party to use a writing for the purpose of refreshing the witness's memory on the stand. In that case, the writing may be used solely to refresh the witness's recollection and is not introduced into evidence.

What hearsay exceptions require the declarant to be *unavailable* at the time of trial?

The FIVE Important Exceptions: my FAMILY and I have a HISTORY of being AGAINST CAUSING UNAVAILABLE FADs (i) *F*ormer Testimony, (ii) Statements *A*gainst Interest, (iii) *D*ying Declarations, (iv) Statements of Personal or *Family History*, and (v) Statements Offered *Against* a Party *Causing* the Declarant's *Unavailability*

Business Records Exception - Police Report

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make the record at the time of the transaction or within a reasonable time thereafter. Also, the record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant. Witness's statements are inadmissible under the business records exception because Witness was not under a business duty to transmit the information to Officer. To fall under the exception, the business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant.

Qualifications for a Statement Against Interest

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements: 1) The statement must have been against pecuniary, proprietary, or penal interest when made. 2) Declarant must have had personal knowledge of the facts. 3) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement. 4) Declarant must be unavailable as a witness.

Declarant Unavailable - Irrelevant

The fact that Officer and Witness are available does not affect the record's admissibility. For the business record to be admissible, the person who made the entry need not be unavailable as a witness.

On the issue of whether a glassine envelope contained heroin, the prosecution offers a crime laboratory report that the envelope contained heroin.

Written Hearsay

On the issue of whether the painting sold to Harvey was actually a genuine Picasso, there is offered a dealer's bill of sale describing the painting as a Picasso.

Written Hearsay

On the issue of whether Spano had been a resident of New York for one year prior to commencing his lawsuit, Spano offers the affidavit of Decla that Spano had lived in Buffalo for 10 years.

Written hearsay; under oath, but hearsay nonetheless.

Action of P against D. Witness No. 1 testifies for P that D's car was going "over 70 miles an hour." To impeach Witness No. 1, D offers the testimony of Witness No. 2 that Witness No. 1 said a day after the accident that D was going "slowly."

(Used solely to cast doubt on credibility; not offered to establish the truth of the assertion.)

In a contract action, the written, executed contract is offered.

(Although an extra-judicial writing, it is not offered to prove the truth of matters asserted in it; legally operative fact.)

On the issue of whether a transfer of a share of stock from Decla to Bushmat was a sale or a gift, Bushmat testifies that Decla made a statement at the time of the transfer: "I'm giving you this share of stock as a birthday present."

(Legally operative words of gift.)

On the issue of whether the complaining witness had a venereal disease, Grutz testifies for the prosecution that the complaining witness had not been placed in the venereal disease ward upon her admission to the girls' reformatory.

(Nonhearsay under the Federal Rules, since it is nonassertive conduct.)

Action for personal injuries by a guest in an automobile against its owner. On the issues of contributory negligence and assumption of risk, a witness testifies that an hour before the accident a mechanic said to the owner in the presence of the guest, "The tread on that left front tire is paper-thin. You're likely to have a blowout."

(Notice, knowledge; not offered to establish that in truth the tread was thin.

In an action for fraud, on the issue of defendant's good faith in representing to plaintiff that a painting was a genuine Picasso, defendant offers a bill of sale from his art dealer describing the painting as a Picasso.

(Offered to prove defendant's good faith in repeating a representation; not offered to prove that the painting was in fact a Picasso. The evidence, in other words, was offered to show the impact of the dealer's representation on the defendant's state of mind, i.e., his belief.)

On the issue of whether landlord knew about a defective stair, a witness testifies that he heard Decla say to the landlord, "The stair is broken."

(Offered to prove notice, not that the stair was in fact broken.)

Recorded Statement May be Admissible Under Other Exceptions

A police report entry is receivable where the informant was a *party* and his statement constituted an *admission*. Note too that certain police reports may be admissible under the *public records* exception.

Which of the following is an example of a statement that is admissible under the *"state of mind"* hearsay exception? "I intend to go to New York next week" "You're driving pretty fast" "I think I left my keys in the car" "Oh my God, Sam just shot me"

Correct Answer "I intend to go to New York next week," to prove that declarant went to New York at that time. "I intend to go to New York next week" falls under the *state of mind* hearsay exception. Declarations of existing state of mind are admissible (i) when declarant's state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant. This statement would be offered to show the subsequent act of the declarant; i.e., that he actually went to New York. "You're driving pretty fast" is an example of a *present sense impression*. If a person perceives some event that is not particularly shocking or exciting, and it does not in fact produce excitement in the observer, that person may nevertheless be moved to comment on what she perceived at the time of receipt of the sense impression or immediately thereafter. "I think I left my keys in the car" is a declaration of the declarant's *memory or belief*. A hearsay statement is not admissible if it expresses a memory or belief of the declarant, and the statement is offered for the purpose of proving the truth of the fact remembered or believed. "Oh my God, Sam just shot me" is an example of an *excited utterance*. An excited utterance is a statement made by a declarant during or soon after a startling event, while the declarant is under the stress of excitement produced by the startling event, and concerning the immediate facts of the startling occurrence.

Under the Federal Rules, a party may be held vicariously responsible for the admission of someone with any of the following relationships to the party:

Correct Answer Authorized spokesperson; partner; co-conspirator; principal-agent An admission is frequently not the statement or act of the party against whom the admission is offered at trial. A party can be held vicariously liable for statements made by people with the following relationships to the party: *Authorized Spokesperson* The statement of a person authorized by a party to speak on its behalf (e.g., statement by company's press agent) can be admitted against the party as an admission. *Principal-Agent* Statements by an agent concerning any matter within the scope of her agency, made during the existence of the employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this admission may be introduced against her employer even if she was not authorized to speak for the employer. *Partners* After a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others. *Co-Conspirators* The Supreme Court has held that admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. The government need not demonstrate the unavailability of a nontestifying co-conspirator as a prerequisite to admission of the co-conspirator's out-of-court statements under Rule 801(d)(2)(E). Also, the court may use the co-conspirator's statement itself, together with other evidence, to determine whether the statement is admissible. [Fed. R. Evid. 801(d)(2)] In other words, the proponent is not required to establish the existence of the conspiracy, and the participation of the declarant and party, with evidence that is entirely independent of the statement itself. In contrast, admissions of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.

A witness testifies on direct examination that he saw defendant's car go through a red light. When the defense counsel cross-examined the witness, she tried to imply that the witness was lying at trial because he had recently begun dating the plaintiff's daughter. The witness then testifies on redirect examination that he told a police officer the same thing several days after the incident. This statement is:

Correct Answer Not hearsay Prior consistent statements, such as the witness's statement to the police officer, are ordinarily hearsay. However, a witness's prior consistent statement is not hearsay if offered to rebut a charge that the witness is lying for a particular motive. The prior statement must be made before the alleged motive to lie came into being. Here, the witness is allowed to testify on redirect examination that he had made the same statement to police shortly after the incident, well before he began dating the plaintiff's daughter. Prior consistent statements do not fall within a hearsay exception. They are classified as either hearsay or nonhearsay, depending on the circumstances described above.

Provided certain requirements are met, a party's silence in the face of an accusatory statement may be considered an admission. Which of the following is not required for silence to be an admission?

Correct Answer The party must not have denied the accusation at a later time. Silence may be an implied admission if the party failed to respond to the accusatory statements when made. Thus, silence may be an admission even if the party denies the statement at a later time. For silence to be an admission the following requirements must be met: (i) The party must have heard and understood the statement; (ii) The party must have been physically and mentally capable of denying the statement; and (iii) A reasonable person would have denied the accusation under the same circumstances. Note that failure to reply to an accusation or statement *made by the police in a criminal case* can almost never be used as an implied admission of a criminal act.

Under the Federal Rules, a certified copy of a felony conviction is admissible as an exception to the hearsay rule in __________ to prove any fact essential to the judgment.

Correct Answer: BOTH Criminal and civil actions The Federal Rules specifically provide that a judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. The convictions that may be used are limited to felonies because persons may choose not to defend misdemeanor charges (e.g., traffic violations). Note that in a criminal case, the government may use a prior conviction for this purpose only against the accused.

In order to be admitted under the residual "catch-all" exception to the hearsay rule, the statement at issue must:

Correct Answer: Have circumstantial guarantees of trustworthiness RESIDUAL "CATCH-ALL" EXCEPTION OF FEDERAL RULES The Federal Rules provide a general catch-all exception for hearsay statements not covered by specific exceptions. [Fed. R. Evid. 807] There are three requirements for a statement to be admitted under the catch-all exception: 1. "Trustworthiness" Factor First of all, the statement must have "circumstantial guarantees of trustworthiness" that are equivalent to those of statements admitted under other hearsay exceptions. 2. "Necessity" Factor The statement must be offered on a material fact, and must be more probative as to that fact than any other evidence which the proponent can reasonably produce so that the "interests of justice" will be served by its admission. 3. Notice to Adversary Finally, the proponent must give notice in advance of trial to the adverse party as to the nature of the statement (including the name and address of the declarant) so that the adversary has an opportunity to prepare to meet it. *The catch-all hearsay exception has no requirement that the statement must be corroborated by other evidence.* *The exception is not limited to statements made by a party to the case.*

Which Statement is Hearsay? (Meaning, three out of the four are NON-Hearsay!!)

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In these examples, you must look at the purpose in offering the evidence. When the issue is whether the lock is broken, the plaintiff's statement to the neighbor that the lock was broken is hearsay; it is an out-of-court statement offered as proof that the lock was broken. When the issue is whether the landlord knew the lock was broken, the neighbor's testimony that plaintiff told the landlord that the lock was broken is not hearsay. Although the statement was made out of court, it is offered to show that the landlord had notice of the broken lock, not to show that the lock was broken. When the issue is whether the lock was broken on a particular day, the neighbor's testimony that she saw a locksmith working on the lock is not hearsay. Certain conduct is a substitute for words and thus could be hearsay, but the locksmith's work is nonassertive conduct. It was not intended as any kind of statement. When the issue is whether the landlord agreed to lease the apartment to the plaintiff, the plaintiff's statement to the landlord that he will rent the apartment if the landlord will fix the lock and the landlord's reply are not hearsay because the evidence is not being offered to prove that the landlord will fix the lock; it is offered to show that there was an agreement between the parties.

Past Recollection Recorded

Under the "past recollection recorded" exception to the hearsay rule, where a witness's memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event, a party may introduce the writing into evidence by reading it aloud to the jury. If admitted under the "past recollection recorded" exception, a writing may be read into evidence and heard by the jury, but it is not received as an exhibit unless offered by the adverse party.

Is the statement considered Hearsay under the Federal Rule? When the issue is whether Declarant is insane, the witness's testimony that Declarant said, "I am Bigfoot"

When the issue is whether Declarant is insane, the witness's testimony that Declarant said, "I am Bigfoot" is not hearsay. Statements by a declarant that serve as circumstantial evidence of the declarant's state of mind are not hearsay. Such statements are not offered to prove the truth of the matter asserted but only that the declarant believed them to be true. The most common examples of this type of nonhearsay are evidence of insanity and evidence of knowledge.

Is the statement considered Hearsay under the Federal Rule? When the issue is whether Defendant made a defamatory statement, the witness's testimony that Defendant said, "Plaintiff is a thief" .

When the issue is whether Defendant made a defamatory statement, the witness's testimony that Defendant said, "Plaintiff is a thief" is not hearsay. There are certain utterances to which the law attaches legal significance (e.g., words of contract, defamation, bribery, cancellation, permission). Evidence of such statements (sometimes called "legally operative facts") is not hearsay because the issue is simply whether the statements were made. The statement is not being offered for its truth (i.e., that Plaintiff is a thief) but to show that the defamatory statement was made. EX: In an action on a contract, words that constitute the offer, acceptance, rejection, etc., are not hearsay because they are offered only to prove what was said, and not that it was true.