Hearsay - evidence

CIVIL action for damages by Pedestrian against Hot Rod Kid for recklessly running him down. At trial, Pedestrian seeks to introduce the report of Officer McNulty, who arrived at the scene 10 minutes after the accident. The report, which was prepared by McNulty at the scene, states (look at individual entries): "Upon arrival, I measured skid marks 50 feet in length." "Officer Bunk, who witnessed the accident, told me that Hot Rod Kid was driving nearly 80 miles per hour." "Bill Bystander told me that he saw the accident and that Hot Rod Kid ran through the stop sign."

"upon arrival, I measured..." is admissible as a business record - police records are business records, it is regular for the officer to record observations at a crime scene, report is made about the time of the event AND the officer himself (employee) observed this information "Officer Bunk, a witness..." is admissible because the fact was reported by a fellow officer- who is also an employee within this rule (business duty to report accurately) "Bill bystander told me..." is INADMISSIBLE unless another hearsay exception applies independently An outsider told the officer this so that outsider had no business duty to report accurately - there is not enough info here to determine if another exception such as excited utterance applies

Criminal defendant's right of confrontation

6th amendment - CRIMINAL defendant must be 'confronted' with witnesses against him - to cross-examine them ONLY APPLIES IN CRIMINAL CASES For hearsay, prosecution may NOT use a hearsay statement against a criminal defendant (even if within an exception ) IF Statement was testimonial AND Declarant is now unavailable AND Defendant has had no opportunity to cross examine that declarant in the past

Party Admission aka Statement of opposing party

Any statement made by the OPPOSING party (plaintiff or defendant) that is offered AGAINST that party - admissible for truth Federal rules - it is non-hearsay NY - it is a hearsay exception Statement did not have to be against the party's interest when it was made, just must be used against them at trial Opposing party did NOT have to have personal knowledge when the statement was made E.g., X is charged with income tax evasion for the year 2009. Prosecutor wants to prove X's income during 2009, and offers into evidence a loan application X submitted to a bank in that year. X objects on the ground that the loan application, which is filled with inflated numbers, was self-serving and unreliable. note: guilty PLEA can be considered an admission in NY

Testimonial statements (confrontation element)

Anything that is the functional equivalent of giving testimony against the defendant E.g., grand jury testimony Some statements to police (see card) Some documents (see card) EXCEPTION - statements that fit into dying declarations hearsay exception

Statement against interest hearsay exception

An unavailable declarant's statement against his or her - (1) Pecuniary interest (damaging comment on financial situation) (2) Proprietary interest (damaging comment that reduces property interests - no longer own, gave away, sold) OR (3) Penal interests (refers to criminal liability) Must be against themselves when the statement was MADE (unlike admissions) Can apply to ANY witness (not just a party - unlike admissions) Personal knowledge IS required (unlike admissions) Declarant must be unavailable in a statement against interest (opposite of admissions) LIMITATION IN CRIMINAL CASES- if statement against penal interest, then it must be supported by corroboration to show the trustworthiness of that statement ( motive, seen in the crime area, purchased weapon used)

Present state of mind hearsay exception

Contemporaneous statement concerning declarant's present state of mind, feelings OR emotions (telling someone else how she feels at the moment she spoke) can be used ONLY to show declarant's state of mind when it is directly in issue OR to show the subsequent acts of the declarant (not just a thought they had that goes to someone else's liability, etc) E.g., Probate of Wanda's Will, in which she left all her money to the local pet cemetery. Wanda's family challenges the will on the ground that Wanda was insane when she executed it. Pet cemetery offers testimony that a few days before execution of the will, Wanda said to her friend, "I do not love my family anymore."

MBE hearsay exception for felony conviction records

Copies of judgments of the court in past cases ARE hearsay Exception exists for - judgment of a FELONY conviction is admissible in BOTH civil and criminal court for the purposes of proving any FACT ESSENTIAL TO JUDGMENT felony = crimes punishable by death or imprisonment of over 1 year DOES NOT EVER APPLY TO MISDEMEANORS note: these do NOT fit into the public records exception

Plaintiff v. Acme Trucking, based on Charlie the truck driver's negligent driving. Charlie was fired immediately after the accident. Two weeks later, Charlie told Plaintiff's insurance adjuster that he had been drunk while driving. At trial, Charlie refused to testify on the ground of self-incrimination.

Example of statement against interest exception Not a vicarious party admission because Charlie was fired when he made the statement (no longer an agent) Statement is against both pecuniary interests (tort liability) and penal interest (admit to crime) Unavailability of declarant due to claiming privilege against self-incrimination

Hearsay exceptions (apply regardless of availability of defendant)

Excited utterance Present sense impressions Present state of mind Declaration of intent PRESENT physical condition Statement made to obtain medical treatment or diagnosis Business records Public records Past recollection recorded (discussed with witnesses) Learned treatises (discussed with experts)

Hearsay exceptions

Foreiture by wrongdoing Former testimony Statement against interest Dying declaration Excited utterance Present sense impression Present state of mind Declaration of intent Present physical condition Statement for purpose of obtaining medical treatment OR diagnosis Business records Public records Past recollection recorded Learned treatises

Exceptions that require a witness to be UNAVAILABLE

Forfeiture Former testimony Statement against interest Dying declaration statement of personal or family history

Prior statement of trial witness

General rule - a witness's own prior statement, if offered to prove its truth, is hearsay and is inadmissible unless exception or exclusion applies (can not say 'I told that to the cops' on direct) EXCLUSIONS -can be used for SUBSTANTIVE purpose: Witness's prior statement of identification of person (in NY it is a hearsay 'exception) note: that witness must be available to be cross-examined (a police officer can NOT testify as to who the witness identified out-of-court because that will be hearsay) MBE ONLY - Witness's prior inconsistent statement if oral, under oath, AND made during formal testimony in a hearing (NY this is only for impeachment) MBE ONLY - witness's prior consistent statement to rebut charge of recent fabrication or improper motive (NY this is only for rehabilitation of credibility)

Action by the estate of Percy against Damien seeking damages for the pain and suffering Percy experienced in an auto accident caused by Damien. Damien denies liability and also asserts that Percy died instantly in the accident. Witness on the stand proposes to testify that shortly after the accident, Percy said, "Damien's car ran the red light."

Hearsay if offered to prove who ran the red light? Yes - to prove the truth of who ran the red light Hearsay if offered to prove that Percy was alive following the accident? No - not hearsay for this because not offered for the truth regarding the red light, but instead shows he could speak so it is relevant to him being alive

Hearsay definition

Out-of-court- statement (oral OR written) offered to prove the truth of the matter asserted within ALWAYS FIRST - check to see what the purpose of trying to admit that statement is (for its truth, for impeachment, etc) - only hearsay if for its truth ALWAYS add this definition when in an essay, you spot a hearsay exception Hearsay is INADMISSIBLE unless an exception or exclusion applies

Adoptive admission

Party expressly OR impliedly adopts a statement made by another person (used as if the opposing party said that statement)

Adoption by silence for admissions

Party remains silent under circumstances in which a REASONABLE person would protest if the statement was false

Grounds of unavailability

Privilege (5th amendment, attorney-client, medical, spousal) Absence from jurisdiction - can not find witness with due diligence OR witness beyond court's subpoena power Illness or death Lack of memory Stuborn refusal to testify NEW YORK DISTINCTION - additional unavailability options Declarant located 100 miles or more from courthouse OR Declarant is physician

When is a past conviction/guilty plea admissible in a subsequent civil trial

Record of a conviction is hearsay MBE - falls into exception for records of FELONY convictions - admissible in BOTH civil and criminal cases to prove any fact essential to the judgment (e.g., arson conviction and can be used to prove the defendant set the fire - because that is an essential element of an arson conviction) Guilty plea is also admissible as a party-opponent admission (it is not conclusive and defendant can be given the chance to explain the circumstances of that plea)

Public records hearsay exception

Records of a public officer or agency regarding The activities of the office or agency (e.g., payroll) OR Matters observed pursuant to duty by law (e.g., Weather bureau reports weather) OR Findings of fact or opinion resulting from investigation authorized by law (e.g., OSHA inspection - even if information comes from outsiders) This does NOT apply to trial reporting note: In NY this exception is not well developed so usually just rely on business records - NY rule= public officer is REQUIRED to make a certificate or affidavit to a fact ascertained or an act performed by him in the course of his official duty AND file or deposit it in a public office

Vicarious party admissions

Statement by agent/employee is admissible against principal/employer IF within scope of employment and made during the existence of this relationship Must be made within the SCOPE of employment (drinking on the job is within scope but truck driver can not talk about hiring decisions because that is not within his scope) AND Must be made during the EXISTENCE of the agency-employment relationship (not after this has concluded because they the agent might say it vindictively) NY DISTINCTION - statement of agent/employee is admissible as vicarious party admission ONLY if principal/employer gave agent/employee the AUTHORITY TO SPEAK about that matter (e.g., explicit - 'Talk to X about this' or implicit - employee is an upper level manager/public relations officer)

Excited utterance hearsay exception

Statement concerns startling event that declarant observed AND statement made while declarant still under stress or excitement of the event To determine if person still under influence of event- Nature of the event Passage of time - could be up to an hour if super startling event Clues in the question - exclamatory phrase, shouted, screamed, exclaimed, exclamation point

PRESENT physical condition hearsay exception

Statement made to ANYONE about declarant's CURRENT physical condition NY DISTINCTION - if this statement is made to a layperson (as opposed to a medical professional) then the declarant must be UNAVAILABLE Plaintiff says to friend - "I am feeling a lot of pain in my arm" MBE - admissible because how she was feeling at that present moment (using present tense) NY - made to layperson and plaintiff (the declarant) is available so inadmissible Also says "I did feel a lot of pain in my back last August" Both MBE and NY - inadmissible because backwards looking (past tense)

Dying declaration hearsay exception

Statement made under belief of impending AND certain death by now-unavailable declarant concerning either the cause OR circumstances of death note: NOT opinions surrounding the death - must be FACTS KNOWN to the declarant of the cause or circumstances of the death, not pure conjecture about who killed her MBE - apply in homicide OR any civil case NY DISTINCTION - ONLY permitted in for criminal homicide (never in civil) Need to show the declarant had given up all hope to live - can not contradict this with 'I will get him later' etc Does NOT actually have to die at that point - can be unavailable for any of the reasons (e.g., went into a coma, fled town, etc) note: if discuss this in relation to a criminal murder trial - discuss confrontation rights concerns (and how they do not apply)

Co-conspirator's statement as admission

Statement of co-conspirator is admissible against a party who is a member of that conspiracy IF statement was made during AND in furtherance of conspiracy

Declaration of intent hearsay exception

Statement of declarant's intent to do something in the FUTURE E.g., Insurance intends to prove suicide and uses a letter from the declarant stating "I am going to end it all next week" E.g., "I'm meeting Ray tonight at the bowling alley" (can show both that the declarant went and that Ray met him there) NY DISTINCTION - if use this to prove joint participation of another person in this intended plan, NY requires BOTH Corroborating evidence of a relationship between the declarant and that person AND declarant is now unavailable

When statements to police are testimonial (6th amendment)

Statements to police - Testimonial IF primary purpose of questioning was to establish OR prove past events that are relevant to criminal prosecution NON-testimonial IF primary purpose of questioning was to enable police assistance to stop an ongoing emergency (calls 911 and seeks help while assault is ongoing) Ongoing emergency includes crime has recently ended but perpetrator is armed and still poses a threat to the victim, police OR public

Circumstantial evidence of the speaker's state of mind (non-hearsay)

Tells something about the declarant - not for the truth of what he actually said Insanity defense - use words of the defendant that make him sound insane (I am elvis) Person gives false alibi - shows guilty conscientiousness Person asks a question - shows lack of knowledge

Forensic reports and confrontation

Testimonial - (1) Analysis of drugs seized from a particular suspect to ascertain if the drugs are cocaine, etc. (2) Analysis of the blood of a suspected DWI driver to ascertain his blood alcohol content. Non-testimonial - Sample of bodily fluid collected from a crime scene fo the purpose of developing a DNA profile if no particular person is suspected at the time of the analysis (blind analysis) If testimonial, NO confrontation violation if - Prosecutor calls testifying expert who performed an independent analysis of the data AND expert only generally refers to the report to show partial basis for her opinion - does not read report to the jury OR introduce it as evidence This makes it expert testimony - rather than hearsay

Police arrive at domestic abuse crime scene, arrest the abuser, and sit down with the victim to ask "what happened?" Then at defendant's trial, victim refuses to testify

The victim's statements to the police, even if they fall within a hearsay exception (e.g., excited utterances), cannot be used against the defendant because they are testimonial, the witness is now unavailable, and there has been no cross- examination.

EXCLUSION from both business records and public records

These do NOT apply to police reports prepared for PROSECUTORIAL PURPOSES against a defendant in a CRIMINAL case purpose- want the officer to be at the trial so the defendant has the opportunity to cross examine him

Non-hearsay statements

These statements are admissible because offered for some PURPOSE other than for the truth of what is asserted in that statement

If Witness testifies, "A told me what B said,"

This is double hearsay - so must have a hearsay exception that applies to both B's statement to A AND A's statement to the person testifying

Bus accident. Passengers A and B were seriously injured. A sued Bus Co., alleging negligence by bus driver. At trial, Witness testified for A that bus driver was intoxicated at time of accident. Thereafter, Witness died. B now sues Bus Co. and seeks to admit a transcript of Witness's former testimony.

This is hearsay BUT falls within former testimony exception Witness now unavailable Offered against the bus company - Bus company was involved in both suits and had the opportunity and motive to cross-examine at the prior proceeding opportunity because defendant at the prior action motive because bus company's liability was at stake in that action AND issues are the same

Impeaching a hearsay declarant

can use ANY impeachment method to attack the credibility of a declarant whose statement is now in evidence Can impeach ALWAYS - even if declarant is unavailable note: can impeach even when the declarant is unavailable for prior inconsistent statement too (even though normally, to impeach an in-court witness that way, they must be given the chance to explain or deny - that rule does NOT extend to a declarant for hearsay)

An approach to hearsay type questions

first - isolate the statement (or writing, etc) second - determine who is the declarant (speaker) who made the statement (if party made the statement - check for admission) third, if non-party then ask what the purpose of the evidence If for truth of the matter asserted - hearsay problem so go to exceptions If for some other purpose (e.g., impeachment) - consider those rules

MBE non-hearsay

statements that CAN come in for their substantive truth IF the declarant testifies at trial or hearing AND is subject to cross-examination Admission Prior SWORN inconsistent statements Prior CONSISTENT statements Prior identifications Remember: declarant must be present at trial for these to apply!

All preliminary fact questions involving standards of trustworthiness of exceptions to the hearsay rule are determined by

the court e.g., whether business record was made in regular course of business e.g., whether a statement offered as dying declaration was made under sense of impending death

Show effect on person who heard/read the statement (non-hearsay)

The statement - put the listener on notice of something (e.g., notice that there is a dangerous split and fall condition in your store) created fear in the mind of the listener gave motive to the listener (letter tells wife that her husband is having an affair) made the listener go somewhere, look at something, touch something, etc Not hearsay because do not care if they are true or not, care if it made the person act

How to prove a business records foundation

(1) Call witness to testify to the 5 elements of business records hearsay exception; witness need not be author of report—can be records custodian or any other knowledgeable person within the business, OR (2) Written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party). NEW YORK DISTINCTION: Certification method is permitted ONLY in three situations: 1. In civil cases, the business records are those of a nonparty that has produced its business records for inspection as part of pretrial discovery, 2. In any type of case,the business records are those of a hospital, or 3. In any type of case,the business records are those of state or local government.

If you spot a hearsay exception on an essay

ALWAYS FIRST DISCUSS THE HEARSAY RULE - Hearsay is an out of court statement offered for the truth of the matter asserted within. Hearsay is generally inadmissible unless an exception applies. THEN discuss the exception

MBE ONLY - learned treatise hearsay exception

Admissible BOTH to impeach AND as substantive evidence Expert must be on the stand and the treatise is called to his attention AND must be established as reliable by testimony of that expert on cross, testimony of another expert OR judicial notice

Former testimony hearsay exception

Admissible when - Former testimony of unavailable witness Given at former proceeding OR deposition Offered against a party who had the opportunity AND motive to cross-examine or develop that witness previously AND About substantially similar issue

Present sense impression hearsay exception

Description of event is made either while event is occurring or IMMEDIATELY thereafter NY DISTINCTION - requires additional corroborating evidence of this event E.g., Mom telephones her son Victor Victim at his apartment. "Mom," he says, "Can you wait a minute? Someone's at the door." Thirty seconds later, Victor gets back on the phone and says, "Mom, can't talk now. My new friend, Hannibal Lecter, is here for dinner. Call you later." note: in NY - would need additional corroborating evidence that it was Hannibal who was at the door- another eye witness, piece of clothing, finger prints, DNA

When documents are testimonial (6th amendment)

Documents - Testimonial if prepared for use by prosecution/litigation - sworn affidavits, forensic lab reports IF purpose is to target the accused individual (NOT DNA from crime scene if a blind analysis) Non-testimonial if kept in course of business - business records (e.g., bank or phone records)

Business records hearsay exception

Elements Records of a business of any type Made in the regular course of business Business regularly keeps these types of records AND Made at OR about the time of the event ALWAYS KEEP AN EYE OUT FOR DOUBLE HEARSAY If information is directly observed by an employee of that business then it is contained within this exception - duty to the employer to report accurately BUT if statement that is recorded is made by an outsider- it must also fall into an independent hearsay exception

Grand jury testimony and former testimony exception

If testimony obtained in grand jury testimony is offered AGAINST the defendant - There is no opportunity for defendant to cross-examine if the testimony was obtained at a GRAND JURY - so this is inadmissible note: if a criminal case, that would also violate the right of confrontation because grand jury testimony is testimonial AND the defendant has no opportunity to cross examine (not even present) If this is offered against the prosecutor - this is admissible because prosecutor is present at the grand jury proceeding AND has the opportunity to develop his case with that witness

Statement made to get medical treatment or diagnosis hearsay exception

Key is the purpose that the statement was made -- Statement made to ANYONE concerning declarant's present symptoms, OR past symptoms OR generally the cause of declarant's condition that was MADE for the purposes of obtaining medical treatment or diagnosis MBE - This INCLUDES statements made to get a medical expert opinion for trial NEW YORK DISTINCTION - this does not apply to statements made for developing opinion for expert testimony at trial Does NOT include the identity of the tortfeasor EXCEPTION - identity of abuser in domestic or child abuse case because it is for psychological treatment Does NOT include the specific way the injury occurred (or liability involved) Does NOT include statements made by physician to the patient (may be a business record instead)

Verbal Acts (non-hearsay)

Legally operative words Substantive law attaches legal rights and obligations for certain words simply because those words were spoken Gates sued Trump for breach of an oral contract. Witness takes the stand and proposes to testify as follows: "I heard Trump say to Gates: 'I accept your offer to sell Microsoft.'" Hearsay? No - verbal act. Substantive law gives legal effect to the words of I accept Examples → terms of patent or copyright, making gift (words of donative intent), bribe, perjury, fraud, defamation, words accompanying ambiguous acts (e.g., D is charged with theft of X's car; D testifies, "As X handed me the keys, he said I could have the car for the weekend.").

Forfeiture exception

Lose BOTH ability to object to hearsay AND ability to confront (or object to lack of confrontation) Test - Defendant's wrongdoing made the witness unavailable because Defendant's conduct was INTENDED to prevent the witness from testifying does NOT require killing the witness- could give him a ticket to leave town, intimate, threaten MBE - must prove this by preponderance of the evidence NY DISTINCTION - must prove this by clear and convincing evidence (higher burden)

Hearsay rule does NOT apply to (types of declarants)

Machines (watch 'said' the time) OR animals (drug sniffing dog barked)

Police records

Often admissible under the business records hearsay exception Must make sure there is a proper foundation that the record is the type made in the regular course of business, it was made in the regular course of business, and at or about the time of the recorded event - must be established by someone with knowledge of the police department's record keeping practices Does not include opinions by police officers without a foundation showing the officer is qualified to be an accident reconstruction expert This does NOT apply to police reports prepared for PROSECUTORIAL PURPOSES against a defendant in a CRIMINAL case

Principal categories of non-hearsay purposes

Verbal acts Show effect on person who heard or read the statement Circumstantial evidence of speaker's state of mind Impeachment

Shooter is on trial for the murder of Victim. In his hospital bed, Victim told the nurse, "I'm feeling pretty good considering Billy Ray tried to kill me." The next day, Victim told a visitor, "I know I'm about to die. Shooter's the one who shot me." Victim then died.

Victim's statement to visitor will come in under dying declaration hearsay exception Victim's statement to nurse - can NOT come in for substantive value because it does not fit into a hearsay exception (not dying declaration because he was 'feeling pretty good) BUT can come in to impeach the declarant as a prior inconsistent statement (non-hearsay purpose is to impeach credibility of victim-declarant)