Hearsay

Inadmissible: statement to prove the truth about the matter asserted

Exception: federal statute, FRE, Supreme Court

Data from machines

Reaction from animals

Explain conduct of police investigation

Identifying characteristics

Effect on listener

Statements of contract

Declarant W prior statement: testifies & subject to cross about statement

Inconsistent: given under penalty of perjury (trial, hearing, other proceeding, deposition)

Consistent: to rebut fabrication (statement occurred before motive to fabricate) or restore credibility from other attack

Identification: person declarant perceived earlier

Opposing party statement: must be offered against opposing party and (statement alone does not establish 3,4, and 5)

• (1) Made statement
• (2) Adopted or believed to be true
• (3) Made by authorized person
• (4) Made by agent or employee within scope of relationship while it existed
• (5) Made by coconspirator during & in furtherance of conspiracy

Present sense impression: event or condition description during or immediately after perceiving

Excited utterance: startling event caused statement

Then-existing condition: statement of state of mind, emotional, sensory, or physical condition

Medical treatment: medical history, symptoms, inception, or general cause

Recorded recollection: cannot recall, made/adopted by W, and reflects W knowledge

Recorded statement: author doesn’t have to be W

Record routine practice: act, event, condition, opinion, or diagnosis

Conditions: info from person with knowledge (doesn’t have to be recorder), near time of occurrence, routine, trustworthy

Procedure: W testify conditions met

Absence of record: prove matter did not occur or exist

Public records: public office activities and matter legal duty to report

Exceptions:

Criminal case: matter observed by law enforcement (police reports)

Civil case: factual findings from legally authorized investigation

Absence of public record: prove record did not exist or matter did not occur

• Judgement conviction: judgement after trial or guilty plea (not nolo), prove material fact & 1+ yr. crime (if non-impeachment use it’s against D)  

• Declarant Unavailable:
• (1) Privilege
• (2) Refusing to testify
• (3) No recall
• (4) Death, then-existing infirmity, physical/mental illness
• (5) Can’t produce by process

• Exceptions:
• (1)Former testimony: given as W in any trial, hearing, or deposition and offered against party that had opportunity to direct, cross, or redirect
• (2)Wrongful unavailability: Statement against party that caused declarant unavailability as W intentionally
• (3)Imminent death: Declarant believed imminent death and made statement about its cause (civil cases or homicide criminal cases)
• (4)Statement against interest: reasonable person in declarant position would only make statement if believed it to be true (economic interest, invalidate claim, exposure to civil or criminal liability) Criminal cases: corroborating evidence needed (timing when statement was made, motive to fabricate, repeated, people told, relationship declarant & party)

Residual exception: catch all interest of justice

Requirement: notice before trial/hearing including declarant name and address

Inadmissible: hearsay is testimonial (must confront & cross)

Test: reasonable W believe statements used in trial

Testimonial: grand jury, formal interview with police, forensic reports,

Non-testimonial: coconspirator statements, business records not created for prosecution, emergency interrogation with police

Credibility: can be attacked when hearsay statement admitted, and supported by character, convictions, credibility impeachment

Inconsistent statement: admitted regardless of its time of occurrence and declarant opportunity to explain or deny it

Party: calls adverse declarant as W then can cross examine