HEARSAY OUTLINE – EVIDENCE

I) What is Hearsay?

A) Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.

B) There are certain risks associated with relying on words of another person:

1) Misperception

2) Faulty Memory

3) Risk of Insincerity

4) Narrative Ambiguity

C) What is a statement?

1) FRE 801: Definitions that apply t this article; Exclusions from Hearsay

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal

conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

2) Assertive Behavior

(a) Verbal Expressions

(i) Embraces all almost all human verbal expressions, oral and written.

(ii) Includes oral or written assertions that the declarant intended as an

assertion.

(iii) “Assertion” describes behavior that is expressive and communicative.

Thus, it has a broad NOT narrow interpretation.

(iv) Includes questions and commands.

(v) Note: Just because something is a statement does not make it hearsay. After

determining that it’s a statement, one must determine whether it’s being used

to prove what it asserts.

(b) Action or Conduct (Wordless Statements)

(i) Wordless behavior is a statement if the nonverbal conduct of the person is

intended as an assertion.
 (ii) Pointing your finger or nodding your head falls into this category. Others are

readily understood but need more context. (“Which way is north? *points*)

(iii) A videotaped re-enactment of the events prepared to show the jury how

those events occurred is hearsay if offered to prove those points.

(c) Hidden Statements (Hearsay at One Removed)

(i) US v. Check: Can’t give your half of a conversation to imply the other person’s

half just to go around the hearsay objection.

(ii) Personal background is technically hearsay but not enforced.

(d) Coded Signals: Coded expressions are hearsay

3) Non-assertive Behavior

(a) Verbal Expressions

(i) Social pleasantries fall under this because they lack factual content.

(ii) Reflexive verbalizing such as painful words fall under this. (ex. OUCH)

(iii) Artistic expression falls under this (ex. repeating lyrics, reading a poem,

etc.)

(iv) Sleeptalk and delusional utterance are typically considered hearsay. This

includes a person who is drugged, drunk, or hypnotized.

(b) Action or Conduct

(i) Non-assertive conduct is not hearsay under 801.

(ii) There is a two-step inference when attempting to bring use it as a statement.

(1) Conduct to belief (conduct suggests what the person was thinking)

(2) Belief to external reality (what he was thinking suggests something about

acts by others, or events or conditions in the world)

(iii) Examples: signing up for a charity; putting on a coat to infer that it is cold

(iv) Nonassertive conduct is often ambiguous when offered to prove a

particular point.

(v) There is a risk of misperception; the evidence might be made up to create a

false impression; there may be underlying motivations

 (vi) Weigh performative aspect vs. assertive aspect

(c) Silence/Non-complaint

(i) Non compliance is not hearsay

(ii) Silence cannot be hearsay IF there is no assertive intent

(iii) Reported lack of knowledge can be considered eharsay

(d) Animal and Machine Statements: Hearsay only applies to HUMANS.

D) When is it offered to prove what it asserts?

1) FRE 801(c): “Hearsay” means a statement that:

(a) The declarant does not make while testifying at the current trial or hearing; AND

(b) A party offers in evidence to prove the truth of the matter asserted in the statement.

2) A statement is hearsay if there is a match between what the proponent (party)

seeks to prove and what the declarant says.

3) Proponent’s purpose: Context and unfolding strategy usually make it clear what the

proponent seeks to prove. If there is doubt what he is trying to prove, the opposition

can raise it and the court will ask what he is trying to prove.

4) Speaker’s Intent: finding the matter asserted leads the court to a subjective inquiry

because the terms refers to the points declarant intended to express or communicate.

5) Hearsay Uses

(a) Direct Assertions of the Matter to Be Proved

(i) This is when someone expresses himself or herself directly and the proponent

is seeking to prove the literal and plain meaning of the intended words.

(b) Indirect Assertions

(i) This is when the literal/apparent meaning differs from the intended meaning.

(1) Example: “The man is breaking the sound barrier”

(ii) Context is important when trying to figure out the implication.

(iii) Sometimes a sentence can have both a direct and indirect assertion

(1) Example: “Someone should give that guy a ticket, at the rate he’s going.”
 (iv) Regardless, it’s hearsay if the proponent is seeking to prove this indirect

assertion that the declarant intended to assert.

(v) The same logic can be applied in determining state of mind. One can imply a

person’s state of mind by what they say and using to prove the statement by

implication would hearsay. However, one can view the statement as

circumstantial evidence of what she thought and thus falling under a non-

hearsay use.

(c) Assertions of Circumstantially Relevant Facts

(i) The phrase :offered in evidence to prove the truth of the matter asserted”

refers to the immediate as well as the ultimate purpose of the proponent.

(1) Example: a statement that a driver was speeding is hearsay if offered to

prove the driver’s negligence because it only tends to prove negligence by

proving the driver was speeding.

6) Non-Hearsay Uses

(a) Verbal Acts, Parts of Acts

(i) Certain statements are verbal acts in the sense that they have legal

significance independent of their assertive quality, and often they comprise

the operative events of the transaction that generates the suit.

(ii) Context still matters, but the focus is not on the subjective intent but rather on

a kind of external meaning found on the face of the words.

(iii) Examples in civil cases are words used in contracts (offer and acceptance),

fraud, defamation, employment discrimination, hostile workplace, and

ratification.

(iv) Also words that have independent logical significance fall under here.

(1) Example: “I’m alive” to show that someone is alive.

(v) When offered to demonstrate the character or nature of the behavior, such

words too are nonhearsay verbal acts

 (1) Example: “You can have my car for the afternoon, please park it in front

when you’re done” to show that the car was loaned and not conveyed by

sale or gift.

(b) Impeachment

(i) Prior inconsistent statements are universally judged to be nonhearsay.

(c) Effect on Listener or Reader

(i) Used as non-hearsay to help prove knowledge, notice, encouragement, or

coercion

(d) Identifying Characteristics; Verbal Objects and Markers

(i) Verbal objects are assertions

(ii) Bridesmaid case: Using two statements to identify a time/marker. Without the

link, it’s mere hearsay

(e) Circumstantial Evidence of State of Mind

(i) Used to show a person’s state of mind by not proving the truth of an

assertion.

(ii) If the assertion is “I’m crazy”, you can’t use this to show he’s crazy. Would

need the SoM exception. However, if the statement is “I’m the king of Mars.”

to prove that the declarant is crazy, then you can use this because you

technically aren’t trying to prove that he’s the king of mars.

(f) Circumstantial Evidence of Memory or Belief

II) Prior Statements by Testifying Witness (801(d)(1))

A) Prior Inconsistent Statements 801(d)(1)(A): The declarant testifies and is subject to cross-

examination about a prior statement, AND the statement 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.
 1) Used for impeachment and for the “turncoat witness” that decides to change

original statement. (LOOK AT IMPEACHMENT RULES)

2) Requirements

(a) Inconsistent

(i) Satisfied if a statement conflicts by implication with testimony, as happens:

(1) If one is particular and the other general in ways that put the two in

tension,

(2) If one includes a point that the other omits,

(3) If one is pointed and specific while the other is qualified and general, or

(4) If one is categorical and the other is uncertain.

(ii) A prior positive statement should be viewed as inconsistent with a claim of

lack of memory at trial.

(b) Made subject to penalty of perjury at trial, hearing, other proceeding, OR

deposition

(i) Grand jury, preliminary hearings, prior trial, and depositions satisfy this

requirement.

(ii) Not limited to statements made at some prior step in the proceedings in

which they are offered. Statements in separate proceedings involving

different parties and transactions seem equally to satisfy the requirement.

(iii) Exception is not just limited to judicial proceedings. Example: government

agency or officer is authorized by law to put witnesses under oath.

(iv) Uncertain whether exception reaches a statement in an affidavit.

(c) Subject to Cross Examination

(i) Suffices if the speaker can be questioned about his statement, even if not

about the acts, events, or conditions descried in it.

(ii) At a minimum, the witness must e testable about the statement.

B) Prior Consistent Statements 801(d)(1)(B): The declarant testifies and is subject to cross-

examination about a prior statement, AND the statement is consistent with the declarant’s
testimony and is offered to rebut an express or implied charge that the declarant recently

fabricated it or acted form a recent improper influence or motive in so testifying.

1) Elements

(a) The statement must be consistent with present testimony by the speaker.

(i) Any consistent statement, sworn OR unsworn, oral OR written, in OR out of

court, may fit the exception.

(ii) Statement may proved be redirect and extrinsic evidence provided the

speaker testifies and is subject to cross.

(iii) The exception cannot be the means to prove new points not covered in the

original testimony

(b) It must be admissible to rehabilitate him and must tend to rebut a charge of

“recent fabrication or improper influence or motive.”

(i) There must be an attack raising one of these charges, which involves the court

in interpreting what has happened.

(ii) Recent fabrication: Inference that the attacking party hopes the fact finder will

draw is that the testimony is distorted or made up from whole cloth.

(iii) Improper motive: Suggests that the witness is bent on some purpose other

than the truth

(iv) Improper influence: witness has succumbed to pressure or temptation by

departing from it

(v) Tome: A prior consistent statement fits the exception only if UTTERED

BEFORE the supposed motive to fabricate arose. Have to know that it arose

before the fabrication arose, if unknown or hard to determine, then likely left

out because of reliability issues.

(c) He must be subject to cross-examination on the statement.

(i) Usually comes into play after impeachment attack

(d) No Confrontation Clause issue because they are on the stand.

 C) Statements of Identification 801(d)(1)(C): The declarant testifies and is subject to cross-

examination about a prior statement, AND the statement identifies a person as someone the

declarant perceived earlier.

1) Common setting: Sees the person and later in court says “he’s the one.”

2) If from mugshot, should be admitted only if there is a clear need since it may be

prejudice.

3) Perceiving?

(a) Does not require seeing or direct sensory observation

(b) Includes voice of the culprit while the act was being committed.

4) Cross-examination

(a) Owens: Reasonably responsive

5) ConLaw: Due process requires exclusion of identification statements gathered in

settings that are unnecessarily suggestive unless emergency considerations justify

the procedures followed.

III) STATEMENTS BY A PARTY OPPONENT

A) An Opposing Party’s Statement 801(d)(2)(A): The statement is offered against the opposing

party AND was made by the party in an individual or representative capacity.

1) Opposing Party’s Statements

(a) Almost infinite breadth because it includes words, writings, and potential signs

on an opposing party’s vehicle in proving employment.

(b) A party who denies making a statement cannot keep it out by objecting on this

ground if the proponent presents sufficient proof to support a jury finding that

the objecting party made the statement.

(c) There is no requirement of indicia of reliability.

(d) May still be excluded under 404-405 (Proving Prior Bad Acts) and 403

(Prejudicial)
 (e) An opposing party’s statement is not ordinarily excludable on grounds that

might apply if the speaker were giving live testimony. Not excludible for lack of

personal knowledge.

(f) The statement does not necessarily bind declarant; it can be rebutted or

explained or denied.

2) Spillover Confessions: Bruton v. United States

(a) Bruton applies only to “testimonial hearsay” (as outlined in Crawford).

(b) In a criminal case where the gov offers an admission or confession by one

defendant implicating another, limited admissibility became inadequate.

(c) It is constitutional error to use the admissions doctrine to admit statements by

one defendant that incriminates others by name or obvious reference.

(d) Bruton still applies where a statement y one codefendant interlocks with a

statement by another. (Can still object if another codefendant’s statement is

consistent with yours)

(e) Has to allude to another defendant. Does not apply in a confession that makes no

reference to the other defendant.

B) Adoptive Admissions 801(d)(2)(B): The statement is offered against an opposing party and is

one the party manifested that it adopted or believed to be true.

1) Adoption is clear if a party agrees to or concurs in an oral statement by another, or

hears and repeats it, or reads and signs a statement prepared by another.

2) Acting in compliance with a statement by another can indicate adoption.

3) There is no adoption if a party makes clear his disagreement with a statement

spoken in his presence, although later disavowing a statement previously adopted

does not remove it from the category.

4) Principal or employer can adopt internal statements, such as agent to principal or

employee to employer.

5) This can include former testimony in a prior proceeding depending on

circumstances.
 6) Receipt and non-response does not amount to adoption.

7) Did the other party hear and verbally or by conduct adopt the statement?

8) Adoption by silence?

(a) Did the party hear the statement?

(b) Was the matter asserted within his knowledge?

(c) Was the occasion and nature of the statement such that one would likely have

replied if they did not mean to accept what was said?

(d) Can be excluded if:

(i) The party id not understand the statement or its significance

(ii) Some physical or psychological factor explains the lack of reply

(iii) The speaker was someone whom the party would likely ignore

(iv) The silence came in response to questioning or comment by a law

enforcement officer

C) Authorized Statements 801(d)(2)(C): The statement is offered against an opposing party and

was made by a person whom the party authorized to make a statement on the subject. (This

statement must be considered but does not by itself establish the declarant’s authority under (C);

the existence of scope of the relationship under (D); or the existence of the conspiracy or

participation in it under (E).)

1) The thing in parenthesis means that you can use the statement but it doe snot

necessarily establish that there was authority, a relationship, or conspiracy.

2) Paves the way to use what the statement asserts (because one can use it as a

nonhearsay verbal act).

3) Typically the authority of a speaking agent is confined to certain subjects or times or

settings, and only those statements can be introduced.

4) Bootstrapping Problem: The statement itself does not establish the predicate facts of

agency or scope, but it may be “considered”.

5) Personal Knowledge is not required.

 6) Pleadings and answers to interrogatories filed in a civil action on behalf of a party

qualify as statements by the party. Can use earlier pleadings as evidence.

7) Prior pleadings in one action do not operate as judicial admissions in another, but

may be evidentiary admissions

D) Statements by Employee or Agents 801(d)(2)(D): The statement is offered against an

opposing party and was made by the party’s agent or employee on a matter within the scope of

that relationship and while it existed. (This statement must be considered but does not by itself

establish the declarant’s authority under (C); the existence of scope of the relationship under (D);

or the existence of the conspiracy or participation in it under (E).)

1) Speaking authority is unnecessarily. The fact that you are agent or employee is

enough.

2) Includes internal statements and e-mails.

3) Statements made after the relationship or before it are inadmissible under this.

4) Scope?

(a) An account of activities by another person and appraisals of the work of the

other if the speaker is responsible to supervise, oversee, or direct the other

(b) A description of events or conditions that are naturally of concern to the speaker

in performing his duties

(c) An account of company practices or policies relating to responsibilities

(d) An account of order the speaker got from someone in authority

(e) Findings made by the speaker in investigating acts or events on behalf of the

employer

(f) Statements relaying messages from the speaker’s superior to another

E) Coconspirator Statements 801(d)(2)(E): The statement is offered against an opposing party

and was made by the party’s coconspirator during and in furtherance of the conspiracy. (This

statement must be considered but does not by itself establish the declarant’s authority under (C);

the existence of scope of the relationship under (D); or the existence of the conspiracy or

participation in it under (E).)

1) Coconspirator statements are no excluded under the Confrontation Clause.

2) Three requirements: The speaker conspired with the person against whom the

statement is offered; the statement was made during the conspiracy; it also

furthered the conspiracy. (COVENTURER, PENDENCY, FURTHERANCE)

3) COVENTURER

(a) Exception requires a conspiracy involving the speaker and the party against

whom the statement is offered.

(b) Requires knowledge and association.

(c) If it’s a group of conspirators, the inability to attribute the statement to a

particular person is not enough to prevent the exception.

(d) Does not require substantive law conspiracy just that there was a mutual

understanding in pursuit of a common purpose.

(e) Need not be charged with conspiracy.

4) PENDENCY

(a) Exception requires that the statement be uttered during the course of the venture.

(b) Statements made during the concealment phase ordinarily do not satisfy the

exception.

(c) If a member of a conspiracy withdraws, later statements by others do not fit the

exception when offered against him.

(d) Arrest terminates involvement. (FORK: some courts don’t think so)

5) FURTHERANCE

(a) The statements must fit the aims apparently motivating the conspirators, which

provide some indication that it can be trusted.

(b) Statements generally satisfy the requirement if they try and get transactions

started, describe pas occurrences to other members in order to map out future

strategy, or simply to keep them current on the progress and problems of the

venture.
 (c) A statement may further a conspiracy even if the speaker talks to a law

enforcement agent working under cover without knowledge of his identity, even

if the speaker knew it but hoped to put him off the scent of an ongoing enture.

(d) “Mere narrative” does not satisfy the requirement, and the term denotes

statements relating events or describing responsibilities where the statements

serve no conspiratorial purpose. (Ex. telling friend or spouse)

(e) Statements amounting to confessions to known law enforcement agents fail the

furtherance requirement, especially where the speaker tries to advance his

individual interest in avoiding prosecution or getting favorable treatment.

IV) UNRESTRICTED HEARSAY EXCEPTIONS

A) Unrestricted = Doesn’t matter whether the declarant is available as a witness

B) Present Sense Impressions (803(1)): A statement describing or explaining an event or

condition, made while or immediately after the declarant perceived it.

1) Reliable because immediacy removes the risk of lack of memory and immediacy

precludes time for reflection.

2) Requirements

(a) The statement must be CONTEMPORANEOUS with the event or condition—

made while speaker perceives it or immediately thereafter.

(i) The time requirement is strict (allows slight delays)

(b) The speaker must have PERCEIVED the event or condition.

(i) Can mean seeing or hearing.

(c) The statement must DESCRIBE OR EXPLAIN the vent or condition.

C) Excited Utterance (803(2)): A statement relating to a startling event or condition, made while

the declarant was under stress or excitement that it caused.

1) Spontaneous reaction is powerful enough to overcome reflective capacity, and the

statement is viewed as the product of the impression made by an external stimulus.

2) Requirements

(a) EXTERNAL STIMULUS

 (i) The external stimulus is usually an accident or a crime

(1) Ex. non-victim eyewitnesses, victim speaking while suffering trauma

(b) EXCITED REACTION

(i) A subjective standard is imposed.

(c) STATEMENT THAT RELATES TO THE STIMULUS

(i) Only a loose relationship is required

3) The more quickly a statement follows the occasion, the more likely it I sto be a

spontaneous reaction.

4) Longer lapses can still allow the exception. The condition of the speaker between the

event and the statement is important.

5) Boot strapping issue

D) Then-Existing Mental, Emotional, or Physical Condition (SoM) (803(3)): 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.

1) The exception only covers statements that involve present conditions (not about the

past because may be unreliable).

2) The exception reaches statements describing physical condition where the issue is

pain and suffering. (Must shed light on condition at the time)

3) Does not allow statements to show the cause of physical feelings.

4) Then Existing Mental Condition

(a) A party wishing to prove his own state of mind needs the exception if he wants

to offer his own statements. (good faith, intent, knowledge, coercion, mental

anguish)

(b) Must indicate existing state of mind not a prior state of mind.
 (c) Fact-laden statements: If read narrowly, statements with facts attached to it

should not be included, but courts tend to allow them anyway to shed light on

the state of mind.

(d) Different from circumstantial state of mind because you are actually trying to

prove what is being asserted here.

(e) Victim statements: extortion cases provide an example of where a third-party

statement offered to prove mental condition is introduced to show fear.

(f) Self-serving statements? Courts generally allow because it is up to the jury to

determine credibility. Court just determines admissibility.

5) Future Conduct (Hillmon)

(a) The exception allows use of a statement showing forward-looking intent on the

part of the speaker as proof that she later acted accordingly.

(b) Statements threatening harm to another also fit the exception

(c) Could show behavior of others, as did Walters letter that he was intending to go

hiking with Hillmon. (Jx split, but in ACN) (Fiester diner case)

6) Facts Remembered or Believed: Apart from wills cases, the exception excludes from

coverage a statement of memory or belief to prove the fact remembered or believed.

7) Wills Cases: Important in cases involving disputes over wills where the private and

personal acts and intentions of an unavailable testator are critical.

E) Statement Made for Medical Diagnosis or Treatment (803(4)): A statement that (A) is

made for—and is reasonably pertinent to—medical diagnosis or treatment; AND (B) describes

medical history, past or present symptoms or sensations, their inceptions, or their general cause.

1) “Reasonably pertinent”: standard that is objective but broad.

(a) Doctor’s opinion has considerable weight in what was reasonably pertinent.

(b) In connection with physical injury, statements saying when and how it happened

(car accident, slip and fall) and mentioning important objects or implements

(dashboard, steps, knife) are pertinent.

 (c) In connection with illnesses, the time of onset of symptoms and apparent cause

(eating food, exertion, exposure) are pertinent, as is nature of the symptoms

(pain, nausea, fever).

(d) The pertinence standard does impose a true limit. Blame-casting statements

attributing fault or identifying assailants or tortfeasors are not reasonably

pertinent. Same with statements suggesting an injury was deliberate or

accidental.

(e) Statements may satisfy the pertinence requirement even though they describe

prior sensations, symptoms, or events. It is only important that they bear on

treatment or diagnosis (broader than 803(3)).

2) The rule does not require the speaker to be the patient or the listener to be a doctor.

It reaches statements by family members who bring the patient to a hospital or

doctor’s office, and Good Samaritans too.

3) Statements to intake people (clerical, nurses, admin assistants) also reach the

exception.

4) Split on whether psychiatric statements fall under this exception. May be no

pressure to be candid as with physical treatment/diagnosis.

F) Recorded Recollection. A record that: (A) Is on a matter the witness once knew about but now

cannot recall well enough to testify fully and accurately; (B) Was made or adopted by the

witness when the matter was fresh in the witness’s memory; and (C) 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.

1) Req #1: “Cannot recall well enough to testify fully and accurately”

(a) To show lack of present memory, the party offering a writing as recorded

recollection should first use it to try to refresh memory. When this fails, the party

should resort to recorded recollection.

 (b) Paves the way for recorded recollection even though the witness remembers the

matter in general outline and suffer only an inability to achieve precision or come

up with details.

(c) RR may be used to add precision to points the witness remembers generally

(time of accident) and supply details he has forgotten (license number of car;

witness cannot remember it).

2) Req #2: “Made or adopted”

(a) Where the witness has written and signed a document I his own hand, there is no

question on this point.

(b) No particular formality (such as signature) is required.

(c) Okay if signed document prepared by another or wrote down without a

signature.

(d) Need not be in writing

(e) If the witness did not participate in making the statement, it may still be used

to refresh memory but not as recorded recollection.

3) Req #3: “Matter fresh in memory”

(a) Gaps or qualifications on the face of a statement reflecting incomplete or

uncertain memory suggest it is stale.

(b) If the matter is relatively important to the life of the speaker, the memory may be

fresh for longer than if it was just a trivial matter.

4) Req #4: “Accurately Reflect”

(a) If he recalls making the statement and testifies from present memory that he took

care to ensure that it accurately reflected what he knew, the requirement is

satisfied. This usually involves circumstantial evidence.

(b) The issue becomes when the witness cannot recall making the statement. Judge

should not allow testimony that they are an honest person and therefore it’s

accurate.

(c) A witness may exclude his own statement by refusing to endorse it.
 5) If a person sees something and tells another about it, and the latter writes down

what he is told, the writing may qualify as recorded recollection.

(a) Both must testify. Observer as to what they saw, and writer as to what they were

told.

6) When a statement is admitted as recorded recollection, the writing may be read into

evidence but may be received as an exhibit only if offered by an adverse party.

(a) Why? To prevent undue emphasis to the written word.

(b) The adverse party may offer the document for use during deliberations along

with other exhibits.

G) Records of a Regularly Conducted Activity (Business Records). A record of an act, event,

condition, opinion, or diagnosis if: (A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge; (B) the record was kept in the course of a

regularly conducted activity of a business, organization, occupation, or calling, whether or not

for profit; (C) making the record was a regular practice of that activity; (D) all these conditions

are shown by the testimony of the custodian or another qualified witness, or by a certification

that complies with 902 o with a statute permitting certification; AND (E) neither the source of

information nor the method or circumstances of preparation indicate lack of trustworthiness.

1) Req #1: The exception reaches records kept in the course of “regularly conducted

activity.”

(a) Embraces records of all kinds of commercial endeavors and nonprofits

associations.

(b) Reaches illegal enterprises and illegality by itself is no indication that the

requirements of the exception are not met.

(c) One person may engage in business for purposes of the exception. (sole

proprietorship or records a person makes for himself in illegally exploiting a

legitimate business.
 (d) Personal nature records do not fall under exception (diaries, shopping lists,

reminder notes). Nor do personal checking account records, nor mileage, service,

or trip records by a car owner.

2) Req #2: The record is regularly made.

(a) The record must be made as a matter of regular practice.

(b) Records made for purposes of pending litigation are usually excluded. Repetition

and frequency can be over longer cycles.

(c) Each person who participates in making the record must act in the routine of

business because there is a multiple hearsay issue. (Business duty rule)

(i) Statements in business records made by outsiders are inadmissible unless

they satisfy an independent hearsay exception or are offered for a purpose

other than truth.

(ii) Statements from one business transferred to another may be admissible as

long as there is context.

3) Req #3: The source of information (who along with other participants in the record

making process must be acting in course of business) has personal knowledge (Type

required in 602).

(a) The source must have personal knowledge, but others in the chain need not have

it.

4) Req #4: The information must be recorded contemporaneously with the event or

occurrence.

(a) Not to be read literally. Making the record must be close in time to the event.

(b) Used to keep out evidence made after self-interest comes into play.

(c) Delay alone is not sufficed to exclude.

5) Standard Applications/Scope

(a) Accident reports

 (i) Sometimes fit the exception and are admitted, although they are more often

excluded as untrustworthy, especially when offered by the party that

prepared them.

(ii) If people who were not personally involved in or potentially responsible

prepared the report, there is more trust.

(b) Internal investigations

(i) Such material is likely to be admitted if against the company itself.

(ii) May be viewed as an admission.

(c) Medical Records

(i) Often fit the exception

(ii) Can be used in combination with medical statement if the patient offers it

(iii) Can be use in combination with admission if the hospital uses it

(d) The term record reaches both electronically stored data and retrieved output.

(e) E-mails are not typically included in this exception.

6) Trustworthiness Factor

(a) How important is the matter recorded to the business outside the context of

litigation?

(b) Did a third party independent of the litigants prepare the recording?

(c) Are simple facts, as opposed to evaluative or speculative, used?

(d) Does law require the report? And if so, are there harsh penalties that might

incentivize a party be truthful?

H) Public Records. A record or statement of a public office if:

1) It sets out:

(a) The office’s activities;

(b) 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

(c) In a civil case or against the government in a criminal case, factual findings from a

legally authorized investigation; and

2) Neither the source of information nor other circumstances indicate a lack of trustworthiness.

3) Variety of PR

(a) Proof of the activities of a public agency by means of its records, whether in the

form of old-style hard copy or electronically stored data.

(i) Ex. transcript of judicial proceeding, to prove an oath. Return of a marshal to

prove he served papers.

(b) “Matter observed”

(i) Limits coverage to information that is concrete and simple in nature

(ii) Excludes a matter observed by law-enforcement personnel IN CRIMINAL

CASES

(iii) Personal knowledge and duty required

(iv) Narrow meaning

(v) Examples: weather conditions, treasury reports of border crossings,

observations in an accident report that describe the scene and equipment and

report concrete measurements and easily observable damage or destruction.

(vi) Reaches records made by one official provided to another AS LONG AS

THEY ARE BOTH GOVERNMENTAL. Does not include transfer from

outside party.

(c) “Factual findings from legally authorized investigation”

(i) Examples: official misconduct, everyday police reports on car accidents based

on investigating the scene and talking to witnesses and participants, and

other accident reports prepared by specialized agencies. Safety studies on

products or procedures to show standards.

4) Crime lab reports

(a) Melendez-Diaz: Affidavits of analysis prepared by the State Crime Lab showing

from defendant was cocaine were clearly “testimonial” and therefore Crawford

required the analyst to testify in person.

 (b) Bullcoming: Who can testify? The presence of the second analyst was not

sufficient to satisfy the Confrontation Clause because such surrogate testimony

could not convey what the analyst who actually conducted the test knew or

observed.

V) DECLARANT UNAVAILABLE EXCEPTIONS (FRE 804)

A) The five exceptions in 804(b) may only be invoked if the declarant is unavailable as a

witness, which is defined in 804(a).

B) When is one unavailable?

1) 804(a)(1): When exempted from testifying about the subject matter of the declarant’s

statement because the court rules that a privilege applies.

(a) This principle applies when a party in a criminal case offers statements by a

defendant because defendants have a constitutional right not even to be called to

the stand.

2) 804(a)(2): A declarant is unavailable if he refuses to testify about the subject matter

despite a court order to do so.

(a) Typically happens when the court overrules a privilege claim and tells the

witness to answer but he refuses.

(b) If the gov can show that its witness is afraid to testify, and that defendant

frightened him in order to keep him from testifying, this behavior forfeits

defendant’s right to exclude as hearsay whatever the witness has already said.

(804(b)(6) then applies)

3) 804(a)(3): A declarant is unavailable if he testifies to not remembering the subject

matter.

(a) Lack of memory on one point does not pave the way for a statement on some

other point.

(b) Testifying to a version of events different form that described before does not

signal lack of memory.

 4) 804(a)(4): A declarant is unavailable if he cannot be present or testify because of

death or a then-existing infirmity, physical illness, or mental illness.

5) 804(a)(5): A declarant is unavailable if he is absent from the trial or hearing and the

statement’s proponent has not been able, by process or other reasonable means, to

procure (A) the declarant’s attendance, in the case of a hearsay exception under

804(b)(1) or (6); OR (B) the declarant’s attendance of testimony in the case of a

hearsay exception under 804(b)(2), (3), or (4).

(a) If the declarant is within geographical reach, a party offering her statement

usually cannot satisfy the unavailability requirement without trying to subpoena

her. (Civil)

(b) Good-faith effort to subpoena the declarant, meaning one designed to obtain his

attendance (not show his unavailability) and must ay necessary expenses.

(Criminal)

(c) Must secure his attendance.

(d) If the declarant cannot be brought by subpoena or persuaded to appear, she is

still not necessarily unavailable under 804.

(i) For purposes of offering dying statements or those that fit the against-interest

or family history exception, such a declarant is only unavailable if her

testimony could not be obtained.

(1) Intent is to force proponent to get her deposition

(e) Reasonable means standard to obtain the person

6) One is not unavailable if wrongfully procured to be that way.(Intimidation, kills)

(a) Mere negligence is probably not wrongful procurement (letting them slip away

C) What are the exceptions? (The following are not excluded by the rule against hearsay if the

declarant is unavailable as a witness…)

1) Former Testimony (804(b)(1))

(a) Testimony that was given as a witness at a trial hearing, or lawful deposition,

whether given during the current proceeding or a different one; AND

 (i) Proceeding difficulties in criminal cases because of a lack of motive to cross.

(b) Testimony that 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.

(i) All that is required is an opportunity to examine

(ii) When using testimony from another proceeding, see how similar the facts

and testimonies are.

(iii) Predecessor in Interest

(1) “Community of interest”: someone with the same interests

(2) “Privity”: a person or party is bound by what another has done

(3) Connection and fairness: How do the parties connect and is it fair?

2) Dying Declaration (804(b)(2))

(a) 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.

(b) A statement must relate to cause or circumstances of impending death.

(i) Can identify the person who inflicted the mortal wound or describes the

accident.

(ii) Can even cover a statement describing a prior threat on the speaker’s life, or a

prior quarrel or altercation if the speaker is explaining the predicament that

brought him to death.

(iii) Does not cover statements describing matter unconnected to apparent

cause or circumstances

(c) Does not cover where a declarant could not have personal knowledge of matter

asserted.

(d) There must be a belief of imminent death (Subjective)

3) Statements Against Interest (804(b)(3))

(a) A statement that 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’
 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.

(b) And that 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.

(c) A statement fits the exception only if the speaker knew what he said was against

his interest.

(d) Against you as you made it

(e) Look at statement in light of all surrounding circumstances because it might not

be against interest in this respect (to police to get a plea bargain)

(f) Dual-aspect (both serving and not): A statement fits the exception if the speaker

was more conscious of giving something up.

(g) Overriding motive: If a countervailing motive undermines the inference of

trustworthiness, then exclude it. (self-serving)

(h) Williamson: Reaches only statements that are themselves against interest, not

those that are collateral. (BREAK THE STATEMENT UP)

(i) Statements made while arrested from an enterprise in which some statements

are fully inculpatory and others that wholly blame-shifting

(i) A third-party statement implicating the speaker and offered in a criminal case,

the rule requires corroborating circumstances that “clearly indicate”

trustworthiness of the statement.

4) Statement of Personal or Family History (804(b)(4))

5) Statement Offered Against a Party that Wrongfully Caused the Declarant’s

Unavailability (804(b)(6))

VI) CATCH ALL EXCEPTION

A) The exception applies only if a statement is offered as evidence of a material fact.

B) Should be used only if the statement is more probative than other evidence the

proponent can obtain through reasonable efforts.

 C) The statement offered must serve the purposes of these rules and the interest of justice.

D) Notice requirement

E) Important use? Child victim statements

VII) CONFRONTATION CLAUSE

A) ONLY APPLIES TO CRIMINAL CASES

B) Has the ∆ had the opportunity to cross examine the witness? If no, is it a testimonial

statement.

C) Crawford: Is it in anticipation of court // is it likely that the court would use it a

criminal trial? (Would a reasonable person think so)

D) Davis: Domestic Violence victim: Cries for help vs. being used for use in court

E) Bryant: Emergency exception: 911 calls > Are you aiding an emergency situation or

blamecasting. Look up list of factors

F) Waived if (1) threaten or murder or make the witness unavailable and (2) the INTENT

is to make the witness unavailable. (Giles)