Evidence: Hearsay

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Admissibility of Evidence (Judge)

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Discretion:
Judge: not bound by evidence rules when determining admissibility of evidence (question of law) Rule 104(a)
EXCEPT for rules of privilege
(Ex. Whether “X shot me” constitutes a dying declaration).

Jury decides the weight and credibility of the evidence (question of fact)

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Review of Evidence of Appeal-Objections

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A party may object to admitting/excluding evidence if (1) specific, timely, and valid and (2) error affects a substantial right of the party

An objection is not preserved if the ground is not obvious and not stated.
Ex. “Objection” is not enough (Bandera).

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Harmless Error Doctrine

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Harmless error doctrine: An error that is unlikely to have made a difference to the outcome is called “harmless,” and will not be grounds for reversal.
Standard for “harmless”
(1) Constitutional challenge: same verdict beyond a reasonable doubt
(2) Non-Constitutional Challenge
(a) More probably than not same verdict

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Plain Error Doctrine & Abuse of Discretion

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If objection is not specific, timely, or valid, error is judged under “plain error” doctrine.
a) FRE 103(d)-substantial right affected.
b) Miscarriage of justice
c) Deprived defendant of fair trial
C. Abuse of discretion standard requires deference to trial judge’s determination because (1) exposure to witness (2) exposure to evidence as a whole (3) familiarity with the case (4) ability to place evidence in context of entire proceedings. (Walton)

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Relevance

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A. FRE 401: Evidence is relevant if: a) the evidence has any tendency to make more or less probable some fact b) of consequence to the c) in determining the action)
A. A) State the evidence
B. B) Of consequence: How the evidence supports some fact of the case
C. C) Determining the action: the legal claim/theory of the case
This standard is really undemanding: “Any tendency to prove”; “A brick is not a wall”

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Excluding Relevant Evidence

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B. FRE 403- Evidence may be excluded if prejudice, confusion, or inefficiency substantially outweighs probative value.
A. Prejudice:
a) Unfair prejudice (emotional basis for decision)
(1) Old Chief: Admission of the type of prior conviction (firearm) unduly prejudicial under FRE 403. Emotional reaction of once a criminal, always a criminal.
b) Confusion (confusing the issues or misleading the jury)
(1) Noriega: Reasons for payment by the US not admissible b/c geopolitical issues confused with whether Noriega was actually paid by US
(2) Flitcraft: Tax law not admitted-confuse jury
c) Time (undue delay, wasting time, unnecessary cumulative value)
B. Remedy for evidence: the limiting instruction FRE 105

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Conditional Relevance

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C. FRE 104(b)-Conditional Relevance
A. Fact A (V had life insurance benefitting Δ) relevant only on condition that party can show existence of (preliminary) Fact B (Δ knew of life insurance)

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Hearsay (Generally)

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A. FRE 801(c)- An out-of-court statement offered to prove the truth of the matter asserted (OCSOTPTMS)
A. Risks and Safeguards
a) Four Hearsay Risks: Perception, Memory, Narration (ambiguity), Sincerity
b) Safeguards: Oath, Personal presence/demeanor, cross examination

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Hearsay: What is a statement?

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A statement may be oral, written, or assertive conduct by a person.
Assertive conduct: intentionally communicate and is a substitute for word.
Ex. When asked who killed X, DL points to D.
Assertive conduct cannot be made by animals or machines.

Non-Assertive Conduct
Common Law: Non-assertive conduct communicates something, whether actor intends to or not.
FRE: Conduct that is not intended as an assertion and therefore not hearsay.

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Is the Statement offered to prove the truth of the matter asserted? (part I)

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State of Mind, Effect on Listener, Verbal Acts, Rumors/Notice
(SERV)

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Is the Statement offered to prove the truth of the matter asserted?

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State of mind
a) Lyons Partnership: Confusion over Barney costumers/IP case. Teacher testifies children shouted “Barney.” Goes to state of children b)
Effect on listener
a) Subramian: Defendant recounts terrorist’s statement “we’re taking you to our leader.” Statement explains effect on D, why he appeared to be acting with terrorists.
Verbal acts
a) From non-owner to owner (Hanson)-husks of corn divided
b) From law-abider to fraudster (Saavedra)-Credit fraud (‘I am a law-enforcement officer’ when specifically not a police officer, is not offered to prove the truth of the matter asserted)
c) From policy-owner to policy-lacking (Creaghe) offered testimony of its agent and employee that D orally cancelled his insurance policy prior to the accident.
d) From law-abider to extortionist (Montana) Officer testifies that “Dodd said ‘it’s going to be $10,000’for the favorable testimony
Rumors/Notice
a) Rumors offered to show defendant’s knew or should have known about problem. Example: Two mailgrams providing D w/ notice of hearing

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Confrontation Clause & Hearsay

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An out of court testimonial statement cannot be admitted in a criminal case against a D unless the DL is made available for cross examination.
Can’t Remember/Evasive: Still admissible

Testimonial: Anything made under oath or penalty of perjury (Affidavits, custodial examinations, depositions, confessions, prior testimony at preliminary hearing/grand jury, former trial, lab reports and police reports (person who created them must be available for trial)
Non testimonial
Emergency response: (1) Existence of emergency (2) medical condition of victim (3) purpose for asking questions (4) victims purpose I answering

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Exceptions to Hearsay-Non-Hearsay (DL MUST BE AVAILABLE TO TESTIFY)
Prior Inconsistent Statement

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801(d)(1)(A): DL’s inconsistent statement is substantively admissible if (1) subject to cross examination concerning prior statement and (2) statement was made under penalty of perjury.
If not under oath, then admissible for impeachment. FRE 613(b).

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Exceptions to Hearsay-Non-Hearsay (DL MUST BE AVAILABLE TO TESTIFY)
Prior Consistent Statement

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801(d)(1)(B): Prior Consistent Statement: prior statement is substantively admissible if (1) subject to cross examination (2) offered to rebut an express or implied charged against witness of recent fabrication or improper influence or motive.

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Exceptions to Hearsay-Non-Hearsay (DL MUST BE AVAILABLE TO TESTIFY)
Prior Statements of Identification

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801(d)(1)(C) Prior Statements of Identification
A prior statement of identification of a person after perceiving him is substantively admissible if (1) based on personal knowledge (2) subject to process examination.
Memory loss does not necessarily render witness unavailable for cross-examination (Owens).

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Exceptions to Hearsay Non Hearsay
Direct & Adoptive Admissions
(STATEMENT OFFERED BY OPPOSING PARTY)

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Direct & Adoptive Admissions 801(d)(2)
Statement does not have to be (1) self-serving (2) personal knowledge, but (3) must be against party opponent
(A) Was made by the party in an individual or representative capacity;
(B) Is one the party manifested that it adopted or believed to be true
Adoption by silence-Surrocuning cirumstances are sucht aht one not belieivng the statmentes is expected to deny them
(i) Fortes- Jemison manifests belief in truth of statements by silence
(ii) Mere failure to respond is not enough (Singer)
(iii) Silence after arrest doesn’t count-incentive to remain silent (Miranda)

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Exceptions to Hearsay Non Hearsay
Authorized Admissions
(STATEMENT OFFERED BY OPPOSING PARTY)

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C. 801(d)(2)- Authorized Admissions/Statements
a) (C) Was made by a person whom the party authorized to make a statement on the subject;
b) (D) FRE 801(d)(2)(D) statement made by a current employee concerning employment.
c) Scope of Employment:
(1) Need not be statement agent authorized to make
(2) Need not be statement to outsider
(3) No personal knowledge required
(4) No reliability guarantee

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Multiple Hearsay

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F. Multiple Hearsay
A. FRE 805: If one out of court statement quote or paraphrases another out of court statement. Evidence is inadmissible if any of the statements are hearsay not within an exception.
a) Beech Aircraft: Plaintiff uses plaintiff’s own statement to cure opponent’s “distortion.” Failed 801(d)(2) but allowed under Rule of completeness doctrine (FRE 106).

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Rule of Completeness Doctrine

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FRE 106
NOT an opportunity to cross examine. Adverse party may require the complete document if it would be “fair.” “Fair” means to avoid misunderstanding or distortion that could be averted only through the presentation of the writing

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Exceptions to Hearsay Non Hearsay
Co-conspirator admissions

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A. A statement by one co-conspirator is admissible against other members of the same conspiracy so long as the statement is made (1) during the course of the conspiracy and (3) in furtherance of the conspiracy.
a) Bootstrapping: Hearsay statement of conspiracy cannot be introduced without evidence to support it. Need some (but very little) foundational evidence. Must balance need of evidence with scope of conspiracy law. (Bourjaily)

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Hearsay Exception: Unavailability of DL Does Not Matter
(General)

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FRE 803: Statements reliable because spontaneous and contemporaneous with the events they describe. Proponent’s burden to show by preponderance of evidence that DL had personal knowledge.

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803(1)-Present Sense of Impression
Unavailability of DL Does Not Matter

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Statement (1) describing or explain it an event or condition (2) made while or immediately after DL perceived it (3) DL had personal knowledge of event or condition

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803(2)-Excited Utterance Exception

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Statement (1) relating to a starting event or condition (3) made while DL was under the stress of excitement it caused (3) longer lapse of time permitted than FRE 803(1)

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803(3)-State of Mind

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(1) Direct evidence of present or future state of mind (2) surrounding circumstances allowed if reference to in statement.

803(3) is direct evidence whereas 801(c) exception is collateral or inferred from statement.

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803(3) State of Mind (Cases & Further Developments)

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a) Hillmon: Statement of declarant’s plan or intent admissible substantively to prove declarant’s conduct in accordance with plan (see 803(3)
b) Shepard: Statement of memory or belief inadmissible substantively to prove fact remembered or believed. FRE 803(3). “My husband has poisoned me.”
c) Houlihan: Statement of declarant’s intent may be admissible to prove conduct of third party (split of authority)
(1) Ex. V says “I’m going to buy drugs from D.” Admissible against both V and D. But must have independent evidence of DL intended to act or third person actually participated.

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803(4)-Injury Reports

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Statement must be 1) reasonably pertinent to treatment/diagnosis; 2) not intended to cast blame; 3) “Diagnosis” includes statements made to physician who serves as expert witness in litigation

Test: whether doctors considered the statement reasonably necessary to their diagnosis or to the treatment sought

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803(4)-Injury Reports (Further Developments)

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Applicable to lay persons if related to DL present bodily condition or symptoms.

Domestic Violence Exception: State v. Moses
(1) Statements identifying an abuser in a domestic violence case (to doctor or social worker for purpose of treatment) constitute an exception to the usual rule prohibiting statements attributing fault
Third party statements: Personal knowledge of symptom report.

B. Confrontation Clause: Statements given for purpose of treatment are generally not testimonial. Statements given for purpose of diagnosis may be testimonial where purpose is to gather information for prosecution.

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803(5)- Past Recollection Recorded

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Witness must have (1) first-hand knowledge (2) record made when fresh in memory that witness (3) impaired recollection to testify “fairly and accurately” (4) W must testify record was accurate when made.
(W does not have to be recorder, but must have first-hand knowledge and testify to accuracy).

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FRE 612-Present Recollection Refreshed

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Tool for obtaining evidence:

If witness’s memory on a subject is impaired, any item may be shown to witness to refresh his recollection.
Witness must acknowledge that memory refreshed before testifying; Testifies about what she remembers, not about document

Cross-examination: Cross-examiner may examine the document or other item show to witness and use any part of document during cross examination.

Common Law- May enter document into evidence
FRE-May read facts in document

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803(6)-Business Records

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Business: Any regularly conducted commercial endeavor
(1) Regularly conducted business activity (2) Business record must be regularly kept (3) Source of information must have personal knowledge (4) Information must be recorded contemporaneously with event or occurrence (5) Supported by in-court foundation testimony (6) Method/Record must appear trustworthy

Business Duty Doctrine: there is no multiple hearsay problem as long as every link in the chain of DL's was speaking or writing pursuant to a duty imposed by the business maintaining the record

Business record recording an outsider statement presents a double hearsay problem

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803(7)-Absence of a Record of a Regularly Conducted Activity

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Purpose of rule: make clear to judges that absence of business record is admissible evidence.
Ex. Evidence of no complaints of product can show no notice of defect.

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803(8)-Public Records

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Record made by (1) Government official activity recorded by government official (2) of a matter observed while under a legal duty to report (3) Personal knowledge (4) Excludes law enforcement observations (5) Method/Record trustworthy

803(A)(ii)-(iii)-Categorically excludes matters observed by law enforcement personnel (including scene of crime, apprehension of accused, otherwise connected w/ investigation). Medical & forensic examiners usually excluded.

Matters observed can include findings includes (Beech Aircraft)

Confrontation Clause: Forensic & medical reports applied because examiners are witnesses to generate testimony.
Any requirement of discretion means witness must testify. Ex. Bullcoming-Blood report (even if it was done by a machine).

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Hearsay Exception: DL Must Be Unavailable to Testify at Trial

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(1) Privileged against testifying (2) Refuses to testify (3) Cannot remember subject matter (4) Cannot be present to testify because of death, physical/mental illness (5) Proponent unable to procure attend by process or other reasonable means

C. Confrontation Clause: Satisfied if (1) witness is beyond that state’s own process and (2) government has made good faith effort to get witness to attend or very unlikely to succeed.

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Doctrine of Forefiture
804(a)-Unavailability

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FRE 804(a) Proponent’s fault: If proponent makes DL unavailable by procurement or wrongdoing, cannot use 804(b) exceptions

Wrongdoing includes (1) Caused DL's unavailability (2) Acquiesced to wrongdoing (5) Intent to cause the DL's unavailability

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FRE 804(b)(1)-Exception of Former Testimony

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Testimony (any statement other than one given under oath and subject to cross-examination)

Civil: Predecessor in interest need not be party, but must have had opportunity and similar motive to cross examine in prior trial
Criminal: Party offering evidence must have had opportunity and similar motive to cross examine prior to trial

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FRE 804(b)(1)-Exception of Former Testimony
Similar Motive & Opportunity

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Similar motive (applied narrowly): (1) Factual issues (2) Same side (3) Comparative importance (4) Nature of proceeding (5) Burden of proof

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Dying Declaration
FRE 804(a)

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[1] In a prosecution for homicide or in a civil case, [2] a statement that the declarant, while believing the declarant’s death to be imminent, [3] made about its cause or circumstances
FRE 804(a)(1)(4), DL need not have died, only believe that death immanent
Personal Knowledge about cause of death and State of Mind of "shadow of impending/imminent death"

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Declaration Against Interest
804(b)(3)

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(1) Hearsay exception for statement against DL’s pecuniary or penal interests (2) DL unavailable (3) DL had firsthand knowledge of facts asserted.
Must be against interest at the time the statement was made

Confrontation Clause: Statements to inculpate can be excused, but statements exculpating by defendant may be assured from Due Process and Confrontation Clause.

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Due Process & Hearsay

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(Rarely Applicable to Admit Evidence)
Due process admits evidence in criminal cases where excluding it would undermine a fair trial
Chambers Court identified certain “facts and circumstances” that bore "pervasive assurances of trustworthiness”
a) spontanaiety;
b) corroboration;
c) Precursor of FRE rule on declaration against interest

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"Catch All” Exception: 807

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Allow hearsay that does not fall within well-defined exclusion if highly reliable and badly needed.

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Five Requirements for FRE 807

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B. Five req’s for OOCS to come in under this exception
1. No other hearsay exception “specifically cover[s]” OOCS
2. Circumstantial guarantee of trustworthiness: Equivalent circumstantial guarantees of trustworthiness
3. Material Fact: Must be offered as evidence of material fact; i.e., relevance m/b directly to fact that could affect determination of action
4. More Probative: Must be more probative on point than any other reasonably attainable evidence. Ex. Live testimony > hearsay
5. Interests of justice: Admission m/ serve “general purposes of these rules and the interests of justice”