#11410 - Hearsay - Evidence

Hearsay: 801-807

1. FRE 801: definition

   1. Out of court statement

      1. Even if statement is made during preliminary hearing, because there is a different trier of fact (judge and jury)

      2. Statement = oral, written, or nonverbal conduct intended to serve as an assertion

      3. Non assertive conduct = cannot be hearsay

         1. Conduct that the declarant did not intend as an assertion, but is being offered as such. Not intended as a substitute for words.

         2. Question of actor’s intent: FRE 104(a) question for the judge.

            1. Burden on party objecting to admission of the actor’s conduct as hearsay

   2. Policy

      1. No oath

      2. No observation of demeanor

      3. No opportunity to cross examine to determine testimonial/hearsay dangers:

         1. Sincerity

         2. Narration ambiguity

         3. Perception

         4. Memory problems

2. FRE 802 – the rule against hearsay

   1. Non Hearsay Uses of OOC

      1. Verbal acts or Legally operative facts

         1. Evidence of certain utterances (contract, defamation, bribery, cancellation, permission) = not hearsay. Because the issue is simply whether the statement was made

            1. Example: in contract case, words that constitute offer, acceptance, rejection is not hearsay

      2. Effect on listener

         1. Ex: negligence case where knowledge of danger is the issue, 3d person’s statement of warning is admissible for the limited purpose of showing knowledge/notice on the part of the listener.

      3. Circumstantial evidence of Declarant’s state of mind

         1. Only offered to prove that the declarant believed something to true (not that that thing was actually true)

            1. Most commonly used to prove: insanity, and knowledge.

            2. Ex: In proceeding where declarant’s sanity is in issue, evidence that declarant had stated OOC “I am John the Baptist” would not be introduced as proof of its truth, but as circumsantail evidence of insanity.

         2. DIFFERENT FROM THE EXCEPTION

            1. Statements that reflect directly on the declarant’s state of mind are hearsay but admissible under an exception.

            2. As a practical matter, this distinction makes little difference because the result is the same & courts don’t often distinguish between the two

      4. 801(d)(1)(A) – Prior inconsistent statement

         1. Inconsistency

            1. Any substantive divergence between two statements. Doesn’t have to be exact opposite.

            2. Whether there is inconcistency: 104(a) determination: ESSF by preponderance of the evidence

            3. Evasion

               1. Considered inconsistency by some courts: “inconsistency may be found in evasive answers, silence, or changes in position.”

         2. Statement was given under penalty of perjury;

         3. Statement was made at a trial, hearing, other proceeding, or in a deposition

            1. Police lineup/interview generally not within meaning of “other proceedings”

            2. Must be some level of formality

            3. Interrogations by immigration officers are held by some courts to be “other proceedings” (including 9th circuit)

         4. The witness must be subject to cross-X concerning the statement by answering questions willingly; the witness need not necessarily remember the underlying event or making the prior statement.

      5. 801(d)(1)(B) – Prior consistent statements

         1. Consistent with declarant’s testimony

         2. To Rebut the charge of motive to lie

            1. Statement must be made prior to the date at which the improper influence of motive allegedly arose

            2. Disagreement over when motive arises

               1. At time of arrest?

               2. When discussions begin about benefits for cooperating? (by DA)

         3. Does not need to be made under oath

         4. The witness must be subject to cross-X concerning the statement by answering questions willingly; the witness need not necessarily remember the underlying event or making the prior statement.

      6. 801(d)(1)(C) – Prior statements of identification

         1. Statement identifies person as someone declarant perceived earlier

            1. Original intent: to only admit statements made at traditional lineups

            2. Now: broad interpretation of identification

            3. Courts split on whether physical description of person given by declarant to police (without reperception of person) fits under 801(d)(1)(C)

         2. Does not need to be made under oath.

         3. Admissibility not limited to rehabilitation of the witness

            1. A prior identification that is consistent with in-court testimony can be admitted without proof of any attack on W’s sincerity.

         4. The witness must be subject to cross-X concerning the statement by answering questions willingly; the witness need not necessarily remember the underlying event or making the prior statement.

      7. 801(d)(2) – admissions (generally no personal knowledge requirement or lay opinion rule)

         1. For all:

            1. No requirement that the statement be against interest at the time it was made

            2. No personal knowledge requirement

            3. No lay opinion rule application

            4. Standard for Judge

               1. Statement by itself does not establish declarant’s authority under C, the existence of scope of relationship under D, or existence of conspiracy or participation under E

               2. Look at totality of circumstances, including the contents of the statement

            5. Nonassertive conduct is admissible b/c admissions are considered nonhearsay

         2. Specific Rules

            1. A plea of guilty to a criminal charge may be used as an admission against the pleader in any later proceeding involving the same act.

            2. A plea of “no contest” is not an admission of guilt so not admissible in any subsequent proceeding

            3. FREs do not provide for the reception of admissions by predecessors in interest

               1. Example: statement by dead person that OP tries to use in wrongful death suit brought by declarant’s family = not admissible

            4. Conduct that reflects awareness of guilt are admissions – attempts to conceal/destroy damaging evidence, attempt to bribe, flight from scene of crime, assumption of false name, attempt to resist arrest

         3. 801(d)(2)(A) – Party admission

            1. Statement made by a party

               1. Trustworthiness not an extra element, up to the jury to decide

            2. Statement offered against that party

         4. 801(d)(2)(B) – Party manifested to adopt statement

            1. Statement made

            2. Party has done something to manifest adoption of the statement/belief in its truth

               1. Number of ways to manifest adoption: words, conduct, silence

                  1. Silence: doesn’t need to be literal. Can be an answer that is silent as to allegation

                  2. Standard of silence:

                     1. Failure to respond is so unnatural, no reasonable person would have remained silent

                     2. Party must have heard and understood the statement

                     3. Party must have been physically and mentally capable of denying the statement

               2. Ultimately a jury question

               3. Failure to reply to an accusation by police in a criminal case can almost never be used as an implied admission of a criminal act

         5. 801(d)(2)(C) – Authorized person

            1. Statement is on a subject

            2. Statement made by a person whom a party authorized to make a statement on that subject

               1. Statements by attorneys = authorized

               2. Minutes taken by secretary at meeting = authorized

            3. Statement offered against that party

         6. 801(d)(2)(D) – Agent/employee

            1. The declarant is an agent or employee of a party

            2. Statement was made while this relationship existed

            3. Statement is on a matter within the scope of the agency or employment relationship

               1. In civil cases, government manuals, sword affidavits, depositions, and prior testimony by government employees have all been admitted

            4. Statement is offered against that party

         7. 801(d)(2)(E) – Coconspirator

            1. Declarant and party against whom the statement is offered were both members of the same conspiracy

               1. Membership requires meeting of the minds to join an enterprise with others with the aim of accomplish specific purpose

               2. Conspirators do not have to know each other, as long as they know the goal of the organization

               3. FRE 104(a) question for the judge to decide ESSF by a preponderance of the evidence

               4. Under Bourjaily, Judge should consider content of hearsay statement itself to decide whether foundational requirements have been satisfied

            2. Statement was made during the conspiracy

               1. Defendant must affirmatively withdraw from conspiracy for statements of co-conspirators not to be admissible against him

               2. Sometimes concealment activities = during conspiracy

               3. After police/gov has busted the organization, statements no longer made during…instead often made for self preservation

            3. Statement was made in furtherance of the conspiracy

               1. Idle chatter not enough

               2. Statements that inform new conspirators or keep co-conspirators informed of significant events and problems have been held admissible, even though they do not actually further the enterprise

3. FRE 803 – Exceptions (regardless of whether the declarant is available as a W)

   1. Present Sense Impression: FRE 803(1)

      1. Foundational requirements

         1. The occurrence of an event or condition

         2. The contents of the statement describe or explain the event or condition

         3. The declarant made the statement while or immediately after perceiving the event or condition

            1. Courts split on how to interpret “immediately” – sometimes seconds after, sometimes 10-15 minutes after

            2. Look to context within which the statement was given

            3. No time to fabricate or misrepresent

      2. Policy

         1. The contemporaneity of the statement and event it is offered to prove tends to ensure the declarant’s sincerity.

   2. Excited Utterance: FRE 803(2)

      1. Foundational requirements

         1. The occurrence of a startling event or condition

         2. The statement relates to the startling event or condition

         3. The statement was made by the declarant while under stress of excitement

            1. Declarant can be unidentified

            2. Time is a factor considered here, but not dispositive

               1. Testimony that the declarant still appeared nervous or distraught and there was reasonable basis for continuing to be emotional stress is sufficient

               2. Statements of young children about sexual abuse are frequently made hours or days after...