Hearsay

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I. HEARSAY

A. Approach to Evidence Question on Exam

1. The first thing to do is to:
underline the cause of action (civil or criminal?)
2. Next, you should:
situate where you are in the proceeding

a. While doing this, you should:
- identify
if you’re in cross-exam/ direct exam etc?
3. Third, you should identify:
how this evidence being used?

a. Two distinctions to make are:
(1) use it to impeach or (2) using it for its truth or substance


B. Definitions (Federal Rules of Evidence “FRE” 801)
1. Hearsay is:
a. an out of court statement (even if someone brings it up in court - eg “i said to the officer…”
b. made by someone (the declarant)

c. being introduced for its truth
2. A statement is:
a. a verbal statement (oral assertion)
b. nonverbal conduct of a person, if it is intended by the person as an assertion.

Example:
A bank robbery occurs, and a man runs from the bank into a bar and sits on a stool. A police
officer comes in and asks the bartender, “Did you just see a man run in here wearing a blue
windbreaker?” The bartender points to the man. The act of pointing the finger is conduct intended
as an assertion, and thus is a statement.

Example:
Same facts as above, only when the bartender points at the man, the man gets up and runs away.
This is not assertive conduct, and is thus not a statement.
(1) Assertive conduct is:
a statement

Example:
Shaking your head ‘yes’ or ‘no’, a smile, a wink, or a police sketch are all examples of
assertive conduct.

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EXAMPLE:
Defendant has just been brought into a police station for arraignment for DUI. While sitting
there, he is videotaped behaving in an abusive manner. He is not acting abusively to prove
he is intoxicated, so this is nonassertive conduct and not a statement.
(2) A statement must be a human statement, not one made by an animal or a machine.
(a) An animal’s behavior may be admitted:
as circumstantial evidence (may get in as relevance)
3. A declarant is:
person who makes a statement
C. Analysis of Hearsay Issues
1. Hearsay is not always inadmissible; the finding that a statement is hearsay merely requires further
analysis of its admissibility:
a. determine the assertion or conduct serving as the out-of-court statement;
b. who
said it (who is the declarant)
c. what is the purpose
(1) If the evidence is being offered for its truth:
figure out how to get it in (go to step 4)
(2) If is it being offered for some other non-truth purpose:
look for a nonhearsay exemption
(a) Examples of non-truth purposes include:
1) impeachment - intro evidence to challenge witness credibility
2) state of mind
3) verbal acts
4) prior statements
(not hearsay)(b) State of Mind
1) These statements are circumstantial evidence offered to prove:
knowledge, intent, attitude or belief

Example:
Plaintiff slips on the steps of a business, and is now suing for negligence. He calls
as a witness a person who overhead someone call out to the owner, “Be careful!
Your steps are slippery!” This person made the statement just moments before
Plaintiff slipped and fell. It is being offered because it is relevant to the owner’s state
of mind—his knowledge of the dangerous condition.
2) A four-step process for learning and applying these rules is:
a) memorize
b) think of example (slippery stairs)
c) vary the example
d) how does each example change answer

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(c) Verbal Acts

1) Where words themselves have legal significance apart from their truth (i.e., at issue
is whether or not the words were actually spoken), the fact of independent probative
value makes them non-hearsay. The two main categories are:
a) transactional words, including the actual words of offer and acceptance in a
contract, or the words of intent in a donative transfer, sale, will, or deed; and
b) torturous words (eg defamation)


c) A possible third category is:
social greetings (“hey how are you?”)
d. apply possible hearsay exceptions.
D. Hearsay Exemptions these are NON-HEARSAY
1. To remember these, there is a mnemonic device: CAPPP
a. C:
co conspirator satement
b. A:
admission
c. P:
prior INCONSITENT statements
d. P:
prior CONSISTENT statements
e. P:

when u can get it in as prior identifications

non-hearsay 2. Co-Conspirator’s Statements
a. Statements of co-conspirators, whether or not a conspiracy has been charged, can be used
against all other co-conspirators:
even if they don’t know there is a conspiracy

b. The elements to this are:
(1) establishment of a conspiracy
(a) This is a preliminary question of fact, determined by the judge.
(2) whether person is in fact member of conspiracy

(3) was statement made in furtherance of conspiracy

(4) is conspiracy still ongoing (can’t be statement long after the conspiracy)

3. Admissions 801(d)
a. There are four types of admissions:
(1) direct admissions
(2) adoptive admmissions

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(a) These can be done either:

conduct or silence
(3) authorized admissions
(4) vicarious admissions
b. Direct Admission direct admission doesn’t need to be a confession (“I did it” statement)
(1) An admission is:
statement by a party offered by the other party

(2) An admission can be either:
fact or opinion
(a) Personal knowledge is required.
(3) The party need not be available.
c. Adopted Admission
(1) For there to be an adopted admission, the party must have:
(1) heard and understood and (2) capable of denying it at the time

(2) An admission by silence requires that:
you show it would have been reasonable to say no at that time

(a) There can be no admissions by silence:
if the person has mirandized (given their miranda rights)
d. Authorized Admission
(1) This is a statement by an agent or employee.
(2) The agency can be either express or implied.
e. Vicarious Admission
(1) This is a statement of the employee:
offered against a party (employee isn’t a party, employer is a party
(2) The statement must have been made:
(a) during the existence of employee- employer relationship
(b) concerning a matter w/in the scope of the employment
f. On an exam question, admissions will come in before hearsay exceptions.
if you have to choose (1) This is because hearsay will not come in unless a judge first decides that it is trustworthy or
bt hearsay exemption reliable. However, admissions do not have to go through this procedural hurdle. This makes
or admission, choose admissions the easier and preferred route.
admission
g. A statement can be an admission even though it is phrased with a question mark.

Example:
Defendant steals an expensive watch. The next day, his friend is visiting and, noticing the watch,
says, “That sure is an expensive watch. You must have stolen it!” Defendant remains silent. Is this
is this admissible? an admission by silence?
no, bc it is just conjecture/ speculation

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4. Prior Inconsistent Statements, Consistent Statements, and Identifications

a. For all three of these rules:
(1) the declarant must testify (the person who made the statement)

(2) the declarant has to be available for cross exam (must be available for challenge0

b. Prior Inconsistent Statements
(1) These are statements which are:
sworn statmeents
(a) Sworn means:
under penalty of perjury at trial , deposition or other legal proceeding

(b) If the statement was sworn, it comes in:
substantively (for the truth)
(c) If the statement was not sworn, then it only comes in:
for impeachment (?)

Example:
A prior inconsistent statement was made in an affidavit. Is the statement sworn?
no ; not done during a legal proceeding
c. Prior Consistent Statements
(1) These are generally offered on redirect to rebut a charge of:
recent fabrication
(2) Along with the other two requirements, the FRE adds a third for prior consistent statements.
The prior consistent statement must:
predates the motivation to fabricate
(a) This requirement is difficult to overcome, making ‘prior consistent statement’ usually an
incorrect answer.
d. Prior Identifications
(1) These are prior statements of identification of:
prior identification of someone
(2) This will generally be a correct answer in a question where there is a lineup, photo
identification, or sketch.

Example:
Defendant is on trial for bank robbery, and the only eyewitness is the victim himself. The
witness testifies that the bank robber had red hair. When Defendant shows up for trial, he has
blonde hair. Prosecution calls the jailer to testify that when Defendant was first brought to jail
he had red hair. Would this be a prior identification?
no; this is just circumstantial evidence that person had red hair at time of incident (?)
E. Hearsay Exceptions
1. Hearsay Exceptions; Availability of Declarant Immaterial (FRE 803)
a. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression

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(a) A present sense impression is a statement which:

describes or explains an event or condition made while or immediately thereafter



(b) Some characteristics of this hearsay exception are:
1) no real time can’t have passed
2) personal knowledge is required (cant rely on what someone else said)
3) declarant doesn’t have to be known (eg slippery stair example)
4) can be a condition (eg cold, or sunny)
5) or can be an event

Example:
Wanda testifies that Victor looked up and screamed, “That crane is about to fall!”
right before the crane fell on him.
(2) Excited Utterance
(a) An excited utterance is a statement:
made while under the stress of excitement from event



(b) Some characteristics of this hearsay exception are:
1) startling event
2) personal knowledge
3)
doesn’t need to be immediate (made while still under stress)

(3) Then-Existing Mental, Emotional, or Physical Condition

(a) This is a statement of the declarant’s then existing state of mind, emotion, sensation, or
physical condition.
(b) This statement will be admitted substantively for its truth.
(c) Some characteristics of this hearsay exception are:
1) doesn’t have to be made a medical person
2) show then existing physical or emotional condition
(d) For this hearsay exception, look at the statement:
purpose (is it coming in substantively?)
(e) Statements of memory or belief:
doesn’t come under this exception
1) The exception to this is:
if the statement is in regard to a will (shows that the will was changed)

(4) Statements for Purposes of Medical Diagnosis or Treatment
(a) These are statements made for purposes of medical diagnosis or treatment and
describing medical history or past or present symptoms, pain, or sensation or the
inception or general character of the cause or external source thereof, insofar as
reasonably pertinent to diagnosis or treatment.

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(b) Some characteristics of this hearsay exception are:

statements made to medical professional
1)

2) statements
relevant to medical diagnosis or treatement

3) statement was intended to for medical diagnosis or treatment

(c) The FRE explicitly excepts statements of fault or liability.
(5) Recorded Recollection
(a) For this exception to operate:
you fail at refreshing the witness recollection

(b) A witness’s recollection can be refreshed in either of two ways:
Text

(c) Some characteristics of this hearsay exception are:
1) the recollection had to have been made while it was fresh in the witness’s mind;
2) the witness must testify that the record:
accurate record
3) document must be read to jury (not given)


(6) Business Records
(a) A business record is a memorandum, record, or report of acts or events made at or near
the time by a person with knowledge if:
1) kept in the course of regular business activity;
2) it was the regular practice of that business activity to make the memorandum,
record, or report, as shown by either the custodian or other qualified witness; and
3) the record is trustworthy.
a) This is a determination made by the judge.
(b) A mnemonic for this is: RRAPP
1) R:
regular course of biz
2) R:
routine practice to make the record

3) A:
at the time near when it happened

4) P:
Person with knowledge of the activity


(c) The foundation witness need not have personal knowledge of the record.

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(d) The record could not be prepared:

in preparation for litigation

Example:
The hospital admission records may be admitted to show that a party did, in fact, seek
medical treatment for his injuries. also police reports
(e) The business record can be authenticated by an employee, affidavit, or stipulation.
(f) When dealing with a lab report in a criminal case, if the preparer of the court is unavailable:
not sufficient (the confrontation clause is violated)
(7) Absence of Entry in Records and Absence of Public Record
(a) Evidence that a matter is not included in the record may be admitted to prove the
nonoccurrence or non-existence of the matter.
(b) For this exception to work, certain requirements must be met. The witness must testify:
1) that he is familiar with the records;
2) he diligently searched
3) no record was found
(8) Public Records and Reports
(a) Records, reports, statements, or data compilations, in any form, of public offices or
agencies, setting forth:
1) the activities of the office or agency;
2) matters observed pursuant to duty imposed by law; and
a) In criminal cases, police reports, when offered against the defendant, are
inadmissible due to a lack of trustworthiness.
b) In civil cases, statements of a third party, bystander, or eyewitness will typically
not be admissible due to a lack of trustworthiness unless the police officer was
there almost immediately after the event.
3) in civil actions, factual findings resulting from an investigation.

Example:
The conclusions of an investigator regarding whether the cause of an airplane crash
was equipment malfunction or pilot error are admissible.
(9) Records of Vital Statistics
(a) Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if
the report thereof was made to a public office pursuant to requirements of law.

Example:
A birth certificate or a marriage license.
(10) Absence of Public Record or Entry
(a) Evidence in the form of a certification in accordance with FRE 902, or testimony, that
diligent search failed to disclose a record, report, statement, or data compilation, or entry
of a matter of which a record, report, statement, or data compilation, in any form, was
regularly made and preserved by a public office or agency.

Example:
The lack of a birth certificate in the usual place a birth certificate would be registered is
admissible.

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(11) Family Records

(a) Statement of fact concerning personal or family history contained in:
family records

Example:
A family tree written in the front of a family Bible may be admitted to prove ancestry.
(12) Market Reports, Commercial Publications
(a) These have to be statements of objective facts, not opinions.

Example:
A telephone directory, credit report, or retail sales catalog would all come in under this
exception.
(b) This exception would even include:
stock value and general market info
(13) Learned Treatises
(a) This is also sometimes called the expert exception, and is viewed very broadly under the
FRE.
(b) The statements made in these treatises are:
authoritative;

(c) There is a foundational requirement before the statements can be read into evidence,
which establishes authoritativeness. This can be done:
1) through an expert
2) judge take judicial notice
3) stipulation to the authoritativeness
(d) Under the Federal Rules, the subject matter can include:
to impeach or substantively to prove the truth?
2. Hearsay Exceptions; Declarant Unavailable (FRE 804)
a. Unavailability as a witness includes situations in which the declarant:
(1) P:
privilege
(2) R:
refusal to testify
(3) I:
incapability

(4) S:
subpoena (still unavailable even after subpoena)

(5) M:
memory (lack of memory)
b. The proponent bears the burden of proving that the witness is unavailable.

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c. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony
(a) These are statements given under oath as a witness either:
same or different proceeding or deposition

(b) The party against whom the testimony is being offered must have had:
the same opportunity to cross exam the witness


(c) One caveat of this is that if the former testimony was given at a grand jury proceeding:
there is no opportunity to cross examine?

Example:
In Trial #1, Defendant was charged with reckless driving, a misdemeanor that carried a
maximum fine of $500. At trial, the officer who followed and arrested Defendant testified
that he saw Defendant throw something out the car window while driving. Defendant’s
attorney did not cross-examine the officer.
In Trial #2, Defendant was charged with murder. At the trial, the prosecution seeks to
introduce the former (Trial #1) testimony of the officer (now deceased) to prove that
Defendant threw the murder weapon from the car. Assume other evidence established
that the weapon was recovered near the location where Defendant was arrested for
reckless driving. The former testimony is inadmissible because Defendant’s attorney had
no real motive to develop or cross-examine the officer at Trial #1, given that the event
had little to do with reckless driving and the fine for reckless driving was small.
(2) Statement under Belief of Impending Death (“Dying Declarations”)
(a) There are four elements of this exception: CUBA
1) C:
cause or circumstance of death

2) U:
unavaiable declarant
3) B:
belief declarant’s death is imminent (doesn’t have to die)

4) A:
any civil case or homicide prosecution (remember attempted murder is not homicide)

Example:
Victim is shot; he is bleeding profusely and coughing up blood. It is reasonable for
him to believe death is imminent. Victim cannot speak, so he grabs a pen and paper
and draws a sketch of the person. This is a statement. Victim then dies, so he is
unavailable. Defendant is then apprehended and charged with murder, so we have a
criminal homicide case.

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(3) Statement against Interest

(a) Two distinguishing characteristics between admissions and declarations against interest
are:
1) statement of non party

2) unavailability required
(b) There are three elements of a statement against interest::
1) non party statement
2) against interest when made
3) for someone that is not available
(c) The interest can be penal, pecuniary, or proprietary.

Example:
Defendant is on trial for bank robbery, but the video camera footage appears to show
that X did it. At the trial, Defendant calls X to testify, and X asserts his Fifth Amendment
privilege and refuses to testify. Defendant calls someone else to testify that X told him
he committed the robbery. This will come in as a declaration against (penal) interest. In
particular, this is an exculpatory statement against penal interest.
(d) Whenever there is an exculpatory statement against penal interest, there is an additional
requirement:
corroboration

Example:
In the above example, the video camera is the corroboration.
(4) Statement of Personal or Family History (“Pedigree Exception”)
(a) A statement concerning the declarant’s own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, marriage, ancestry, or other similar fact of
personalText
or family history, even though declarant had no means of acquiring personal
knowledge of the matter stated.

Example:
A woman’s statement of her birth date.
(5) Forfeiture by Wrongdoing
(a) A statement offered against a party that has:
wrongfully acquiesced into the wrongful procurement of the witness /
declarant’s availability (very serious like kidnapping)

(b) For this to apply, the defendant must have engaged in very serious wrongdoing intended
to procure the witness’s unavailability.
(c) Once the defendant does this, he forfeits any hearsay objection and waives his
Confrontation Clause rights.
3. Confrontation Clause
a. Under the Sixth Amendment’s Confrontation Clause, testimonial hearsay is inadmissible against a
criminal defendant who has not had an opportunity to cross-examine the declarant.

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(1) Testimonial evidence refers to situations where the primary purpose of the police
interrogation is:
to assist in future prosecution / trial

(2) Testimonial evidence in this context refers, at a minimum, to:
(a) prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and
(b) police interrogations.
(3) Evidence is non-testimonial in situations where the primary purpose of the statement is:
to enable the police to meet an ongoing emergency (not prosecution; eg 9-1-1 call)

4. Hearsay Within Hearsay (FRE 805)
a. Where one out-of-court statement offered for its truth contains another such out-of-court statement
(“double hearsay”), each layer of hearsay must be examined separately and a hearsay exception
found. Justification for admissibility of each statement is required; otherwise, the entire statement
is inadmissible.
b. Common examples where this will arise include:
business records and statement by customer

Example:
The custodian of a business record could introduce into evidence an entry made by her employer
recording a statement made to him by the defendant which said, “The goods I sold you were not
up to our usual quality.” The entry itself would be a business record and the statement included
therein would be an admission.
5. Attacking and Supporting Credibility of Declarant (FRE 806)
a. A declarant may be impeached in many different ways, including by:
bias ; impeaching the credibility of the out of court declarant

Example:
Girlfriend calls 911 and says, “My boyfriend just pulled a gun on me!” The dispatcher notifies the
police, who arrive at the house within minutes. Boyfriend decides he is going to drive around the
block one more time to see what is happening. He is then apprehended and charged with assault
with a deadly weapon. At trial, Girlfriend decides she does not want to testify and refuses to do
so. Nonetheless, the 911 tape is admitted as a present sense impression. The defense then calls
Neighbor as a witness to testify that Girlfriend was walking down the street with Neighbor about a
month after the accident and told him, “My boyfriend never had a gun that day.” That statement is
admissible to impeach what Girlfriend said in the 911 tape.
6. Residual Exception (FRE 807)
a. A statement not otherwise covered by an exception to the hearsay rule is nevertheless not
excluded by the hearsay rule under certain circumstances:
(1) the statement is more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts;
(2) t he statement has circumstantial guarantees of trustworthiness equivalent to those embodied
by FRE 803 and 804;

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(3) the proponent of the statement gives the adverse party advance notice of the intent to
offer the statement and the statement’s particulars, including the name and address of the
declarant;
(4) offered as evidence of material fact
(5) the general purposes of the FRE and the interests of justice will best be served by admission
of the statement into evidence.

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Multiple Choice Questions
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 Hearsay Answer Grid

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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Question 1 Question 2
A homeowner owns a cottage in the historic section of A plaintiff sues a defendant for injuries he sustained in an
downtown. A city employee informed her in March that automobile collision. At trial, the plaintiff testified that
the city would be spraying in her area to eradicate the the defendant drove through a “STOP” sign and hit him.
infestation of gypsy moths that were destroying the old The defendant testified that he had stopped at the STOP
trees that lined her street. The employee informed the sign and proceeded cautiously into the intersection. The
homeowner that the spraying would take place on May plaintiff’s attorney did not cross-examine the defendant.
1 and would not be harmful to household pets. Based
The plaintiff’s attorney called a police officer who
on this information, the homeowner left her pets in
testified that the defendant told him he had not seen the
her yard on May 1. On May 4, the homeowner’s two-
STOP sign, because of overhanging tree branches.
year-old poodle died, and on May 7, her three-year-old
golden retriever died. The homeowner’s cat’s health was The judge should find that the officer’s testimony is
unchanged. Toxicology reports confirmed that the dogs
(A) inadmissible, because the accident report is the
had died from elevated levels of the same compound the
best evidence of what the defendant told the
city used. The homeowner sued the city and several of its
officer.
employees, including the director of pest control.
(B) inadmissible, as hearsay not within any
The director recently suffered a severe heart attack and
recognized exception.
cannot testify. The homeowner’s lawyer calls one of the
nurses who attended to the director. The nurse proposes (C) admissible, as a prior inconsistent statement to
to testify to a conversation between the director and the impeach the defendant.
director’s husband, which the nurse overheard while
(D) admissible, as offered against the defendant.
in the course of her duties. In that conversation, the
director told her husband that she was afraid she might
be demoted because of the way she managed that spring
moth eradication program. The director said she should
not have hired the contractor she did, because they had a
poor reputation.
Is the nurse’s testimony admissible?
(A) Yes, as a vicarious admission.
(B) Yes, as a declaration against interest.
(C) No, as hearsay not within any exception.
(D) No, as violative of the husband-wife confidential
privilege.

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Question 3
A man’s car broke down, and since he was only a
mile from the repair shop, he decided to walk. As he
approached the repair shop, he tripped on the cracked
front cement step. The man fell and fractured his wrist. A
woman who was jogging by rushed up to him and asked,
“Are you hurt?” The man said, “Yes.” The jogger then
remarked, “It is unbelievable that a business would allow
its front step to deteriorate to this state.”
A few months later, the man filed an action against
the repair shop to recover for his injuries. At trial, the
jogger’s statement is
(A) admissible, even though it is hearsay.
(B) admissible, as an excited utterance.
(C) inadmissible, as hearsay not within any
recognized exception.
(D) inadmissible, if the declarant cannot be
subpoenaed to testify at trial.
Multiple Choice Questions
Question 4
A woman is on trial for murder. The prosecution calls
a police detective to testify against her. On cross-
examination, the woman’s attorney asks the detective to
confirm that the murder victim, shortly before he died,
stated aloud that the woman was not the one who killed
him, and the detective answers that he is unable to recall
whether the victim made such a statement. The woman’s
attorney seeks to refresh the detective’s memory by
asking him to read a case report prepared by another
police officer immediately following the woman’s arrest.
Is it permissible for the woman’s attorney to request that
the detective read the police report?
(A) Yes, but only to refresh the detective’s
recollection.
(B) Yes, but only if the report constitutes a business
record.
(C) No, because the report is hearsay not within any
exception.
(D) No, because the detective did not prepare or
adopt the report.
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Question 5
A tenant in an apartment building was charged with the
homicide of his neighbor. The tenant claimed that he had
acted in self-defense. At trial, the tenant testified that
when he first moved into the apartment building, he was
told to stay away from the neighbor because she was “a
black widow.” The prosecution objected.
How should the court rule?
(A) The statement is inadmissible as a self-serving
statement.
(B) The statement is inadmissible as hearsay not
within an applicable exception.
(C) The statement is admissible as non-hearsay.
(D) The statement is admissible as a present sense
impression.

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 Hearsay Answer Key

BE SURE EACH MARK IS DARK AND COMPLETELY FILLS THE INTENDED OVAL, AS SHOWN IN A B C D
THE ILLUSTRATION AT THE RIGHT. COMPLETELY ERASE ANY MISTAKES OR STRAY MARKS.
IN THE BOXES PROVIDED BELOW, PRINT YOUR LAST NAME,
SKIP A BOX, THEN PRINT YOUR FIRST NAME, SKIP A BOX,

1 A B C D 2 A B C D 3 A B C D 4 A B C D 5 A B C D
LAST NAME, THEN FIRST NAME
THEN PRINT YOUR MIDDLE INITIAL.

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