1. Definition (FRE 801)
    Hearsay is an oral or written out-of-court statement offered to prove the truth of the matter asserted.

    Only people can give hearsay statements (not machines (print-out from DNA analyzer)).

    Purpose is Key

    An out-of-court statement will not be hearsay if it is not offered to prove the truth of the matter asserted.

    IOW, ask, “Do we care whether or not declarant is telling the truth?”
  2. Non-Hearsay Purposes
    Principal Categories

    Verbal Acts (Legally Operative Words)

    Effect on Person Who Heard or Read Statement

    Circumstantial Evidence of Speaker’s State of Mind
  3. Non-Hearsay Purposes
    A prior out-of-court statement may be offered to show that a witness has bee inconsistent, without necessarily being offered to prove the truth of the prior statement.
  4. Non-Hearsay Purposes
    Verbal Acts (Legally Operative Words)
    Words with independent legal significance are not hearsay.

    =when the law attaches rights/obligations to certain words merely because they were said:

    (a) words of offer, repudiation or cancellation of contract;

    (b) words that have the effect of making a gift or bribe;

    (c) words that are themselves an act of perjury or a criminal misrepresentation or defamation.
  5. Non-Hearsay Purposes
    Showing Effect on Person Who Heard or Read Statement
    A statement that is relevant simply because someone heard it (or read it) is not hearsay.

    Hearing something can put someone on notice or give someone a motive or can make someone’s belief reasonable (slip and fall in grocery store, where there an announcement over PA that a jar was broken—puts store on notice).
  6. Non-Hearsay Purposes
    Circumstantial Evidence on Speaker's State of Mind
    A statement that unintentionally reveals something about the speaker’s state of mind is not hearsay.

    Statements demonstrating insanity; lies that demonstrate a consciousness of guilt; questions that demonstrate a lack of knowledge.

    (“I am Elvis.” = offered for state of mind (insanity)).
  7. Prior Statements of Trial Witnesses (FRE 801(d)(1))
    • (A) Prior inconsistent statements;
    • (B) Prior consistent statements;
    • (C) Prior statements of identification.
  8. Prior Statements of Trial Witness
    Prior Inconsistent Statements (FRE 801(d)(1)(A)
    • (a) prior inconsistent statement;
    • (b) made under oath;
    • (c) in a formal proceeding (trial or deposition).

    • Statements to police never fall under this exception.
    • Not recognized (can’t use for substance, but can use to impeach).
  9. Prior Statements of Trial Witnesses
    Prior Consistent Statements (FRE 801(d)(1)(B)
    • (a) prior consistent statement;
    • (b) used to rebut an express or implied accusation of a motive to lie (recent fabrication or motive to lie); and
    • (c) made before the motive arose.

    Not recognized (can’t use for substance; but can use to rehabilitate).
  10. Prior Statements of Trial Witnesses
    Prior Statements of Identification
    Original ID must have been by testifying witness.

    Criminal cases only.
  11. Hearsay Exceptions
    Top Ten
    • Opposing Party
    • 1. Party admission

    • Declarant Unavailable
    • 2. Former testimony
    • 3. Forfeiture by wrongdoing
    • 4. Statement against interest
    • 5. Dying declaration

    • Availability Immaterial
    • 6. Excited utterance
    • 7. Present sense impression
    • 8. Statement of then-existing mental, emotional, or physical condition
    • 9. Statement for purpose of medical treatment or diagnosis
    • 10. Business and public record

    (also, Past Recollection Recorded; Learned Treatises)

    • Almost Exceptions
    • When a situation almost fits an exception but doesn’t; look for another: an “almost” dying declaration may be an excited utterance.
  12. Hearsay Exceptions
    Party Admission (FRE 801(d)(2))
    Any statement made by a party is admissible if offered against the party.

    Rationale is estoppel, not reliability.

    Vicarious Admissions

    Agent Admissions:

    • A statement
    • (a) by an agent or employee of the party;
    • (b) concerning a matter within the scope of the agency or employment; and
    • (c) made during the agency or employment.

    • NY Agent Admissions:
    • An agent statement is admissible only if the agent has speaking authority (i.e. person hired to talk to public) (CEO, GC, VP Comms)

    • Co-Conspirator Admissions:
    • A statement of one co-conspirator is admissible against other co conspirators provided the statement was made during and in furtherance of the conspiracy.
    • (Confessions are almost never in furtherance.)
  13. Hearsay Exceptions
    Grounds of Unavailability (FRE 804(a))
    • (a) privilege;
    • (b) absence from jdx (can’t find witness);
    • (c) illness or death;
    • (d) lack of memory;
    • (e) stubborn refusal to testify (willing to stand in contempt);

    • (f) declarant is located 100 miles
    • or more from the courthouse;
    • (g) declarant is a doctor.
    • (d)—not recognized
    • (e)—not recognized
  14. Hearsay Exceptions
    Former Testimony (FRE 804(b)(1))
    • Elements
    • 1. Declarant unavailable;
    • 2. Prior statement in proceeding or deposition;
    • 3. Statement offered against a party who, in the prior proceeding, had an opportunity and similar motive to cross-examine or otherwise develop the testimony.

    (Similar motive=substantially similar context, so party has similar incentive to cross).

    • Only applies to criminal cases. Former testimony must have been given at
    • (a) criminal trial, hearing on felony complaint, or conditional deposition;
    • (b) defendant and charge must be same in both former and current case.
    • (Basically only where you have a mistrial followed by a witness becoming unavailable).
  15. Hearsay Exceptions
    Review: Former Testimony vs. Prior Inconsistent Statements
    • When Made
    • Former: Formal proceeding
    • Prior: Proceeding; under oath

    • Declarant
    • Former: Unavailable
    • Prior: Available (can’t be inconsistent without testifying)

    • Prior Statement
    • Former: Motive and opportunity to cross
    • Prior: Inconsistent
  16. Hearsay Exceptions
    Forfeiture by Wrongdoing (FRE 804(b)(6))
    Declarant’s hearsay may be offered against any party who intentionally and wrongfully made the declarant unavailable.

    Intent includes acquiescing in wrongdoing intended to procure unavailability.

    Fighting out of anger lacks intent.

    • Burden of Proof re Wrongdoing
    • --Preponderance
    • --Clear and Convincing
  17. Hearsay Exceptions
    Statement Against Interest (FRE 804(b)(3))
    • Elements
    • 1. Declarant is unavailable;
    • 2. Statement is against declarant’s pecuniary, proprietary, or penal interest.
    • Money liability and prosecution. Mere ridicule and disgrace are not enough.

    • Criminal Cases
    • Statements against penal interest offered to help the accused must be supported by corroborating circumstances.
    • (To stop D from floating rumors that someone else committed the crime).
  18. Hearsay Exceptions
    Party Admissions vs. Statements Against Interest
    • Declarant
    • Party: Party or agent
    • Stmt: Any unavailable

    • Offered Against?
    • Party: That party
    • Stmt: Anyone

    • Add’l Conditions
    • Party: None
    • Stmt: Against Interest

    • Personal Knowledge Required
    • Party: No (eat your words)
    • Stmt: Yes.
  19. Hearsay Exceptions
    Dying Declaration (FRE 804(b)(2))
    • Elements
    • 1. Declarant is unavailable (not nec. dead!)
    • 2. Statement was made under belief of certain and impending death; and
    • 3. Statement concerns the cause or circumstances of the impending death.

    • Type of Case
    • --Civil and homicide only
    • --Homicide only

    • Impending
    • --asking for a doctor=not impending;
    • --asking for a priest=impending.
  20. Hearsay Exceptions
    Excited Utterance (FRE 803(2))
    • Elements
    • 1. Statement concerns a startling event or condition; and
    • 2. Made while declarant was still under the stress caused by the event or condition.

    • Qualifiers for “Excited”
    • (1) traumatic event;
    • (2) relatively short passage of time (10 min is pushing it);
    • (3) verbal cues (“excitedly,” “yelled,” “!!!”).
  21. Hearsay Exceptions
    Present Sense Impression (FRE 803(1))
    • Elements
    • 1. Statement describes an event or condition;
    • 2. Made while or immediately after the event or condition.
    • (immediately=seconds, not minutes)
    • (no “startling” requirement)

    Requires corroboration.
  22. Hearsay Exceptions
    Statement of Then-Existing Mental Emotional or Physical Condition (FRE 803(3))
    • Elements
    • 1. A contemporaneous statement;
    • 2. Concerning declarant’s then-existing:
    • --(a) physical condition; or
    • --(b) state of mind.

    • Includes
    • --emotions
    • --mental feelings
    • --intent or future plans (incl. intent to do something with a third person)
    • --sensations
    • --bodily health

    • Does not Include
    • --Memory
    • --Belief about a past condition

    Statement of

    --Physical condition made to a lay person, declarant must be unavailable.

    --Future intent to prove conduct of third person, declarant must be unavailable AND there must be corroboration of the connection between the declarant and the third person.
  23. Hearsay Exceptions
    Statements for Purpose of Medical Treatment of Diagnosis (FRE 803(4))
    • Elements
    • 1. Made for the purpose of
    • --(a) medical diagnosis; or
    • --(b) treatment.

    • 2. Concerning
    • --(a) present symptoms; or
    • --(b) past symptoms; or
    • --(c) the general cause of the medical condition.

    • 3. But not
    • --(a) statements of fault;
    • --(b) the wrongdoer’s identity.

    Not available for statements made solely for the purpose of obtaining expert testimony at trial.
  24. Hearsay Exceptions
    Business and Public Records (FRE 803(6) & (8))
    • Elements
    • 1. Records of a business (of any type, including public agencies, and illegal organizations);
    • 2. Made in the regular course of business (is germane to the business);
    • 3. Where the business regularly keeps such records;
    • 4. Made contemporaneously (at or near the time of the event recorded); and
    • 5. The contents consist of:
    • --(a) Information observed by employees of the business; or
    • --(b) Statements falling within some other hearsay exception.

    • Public Records
    • In addition, may include:
    • Conclusions made by public employees after an official investigation.
    • (An officer’s conclusion about fault in an accident report).

    But, a police report may not be offered against a criminal D.

    • NY Public Records
    • Rarely applies. Lots of requirements.

    • Foundation for Business Records
    • (1) Live testimony (records custodian)
    • (2) Affidavit with elements of rule.
    • Affidavit may only be used in civil cases for records of a non-party.
  25. Hearsay and the Confrontation Clause
    6amd requires that D be “confronted” with witnesses against him, meaning the prosecution may not offer testimonial hearsay in violation of the D’s right to cross-examine the declarant.

    • Right to Cross Examine is Satisfied:
    • (1) D already had a chance to cross (former testimony exception);
    • (2) D can cross examine declarant at trial (prior statement of trial witness);
    • (3) D forfeited his right through witness tampering (forfeiture by wrongdoing).


    Grand Jury Testimony: Testimonial.

    • Statements in response to a police interrogation:
    • --Testimonial if the primary purpose of the questioning is to establish to prove past events potentially relevant to later prosecution. (point of questioning is to gather evidence).

    --Non-testimonial if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency. (a 911 call)

    • Documents
    • -Police reports are testimonial.
    • -Business records are not.

    Non-testimonial doesn't mean not hearsay!
  26. Hearsay Review
    Definition. Out-of-court statement offered for its truth.

    Basic Rule. Inadmissible.

    • Except:
    • Four Non-Hearsay Uses.
    • (1) impeachment;
    • (2) verbal acts;
    • (3) effect on listener;
    • (4) circumstantial evidence of state of mind;

    • Three Rules for Prior Statements of Trial Witnesses
    • (1) Prior statement of identification (criminal cases only)
    • (2) Prior inconsistent statements (not recognized)
    • (3) Prior consistent statements (not recognized)

    • Ten General Exceptions
    • (1) Party admissions;
    • (2) Former testimony;
    • (3) Forfeiture by wrongdoing;
    • (4) Statements against interest;
    • (5) Dying declaration;
    • (6) Excited utterance;
    • (7) Present-sense impression;
    • (8) Then-existing physical condition;
    • (9) Medical treatment;
    • (10) Business and public records.
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