Hearsay

Hierarchy

i. Common law Non HS

ii. 801 (d) exemptions

iii. 803 + 804 exceptions

Common-Law Non-Hearsay Categories

1. Verbal Acts: words that have independent legal significance -> when action
that needs to be prove is part of your cause of action, contractual terms,
defamatory terms, words of assignment, deeds, words giving notice where
notice legally required, words of donator, words forming conspiracy,
hanson/shrik, prior inconsistent statement.
Example 1:
Person gives notice to insurance but insurance refuses to pay. Person’s
friend will testify that she was present when Person called insurance to
give notice. Upon an objection by defense, the judge should rule:
a. admissible as non-hearsay
b. admissible as direct proof of a fact in issue
(B) is a narrower explanation and the right answer. What you are proving
when you are proving a legal act you need to prove a fact that is at issue.

Example 2:
The IRS is suing person for not paying taxes on a Lexus automobile.
Person is claiming the Lexus was a gift not subject to taxable income.
What testimony can Person offer?
a. Smith told me: I gave my Lexus as a gift to Person yesterday”
b. I was standing next to Person and Smith when Smith said: “Person, here
are the keys to my Lexus. Accept it as my gift to you.”
(B) correct answer because in (A) words don’t have legal significance.

Example 3:
Plaintiff Hanson leased farm to Schrik. Schrik was to pay him corn in
return of land. Schrik gave mortgage to bank on corn and eventually
 mortgage sold to Defendant Johnson. Plaintiff argued that was his share
of crops and that it was converted by Defendant.

Defendants: Bank and Johnson

Plaintiff v. Bank and Johnson to show the corn was his.
Plaintiff takes the stand and says that Schrik said: “Those 3 cribs of corn
are yours”. He wants to show partition of a fungible crop. Admissible.
Bystander on the stand and Hanson not present and Shirck says “He told
me he would give Harson corn”
Words of transfer have to be said to the transferee so not verbal act. But if
Shirck is unavailable under the exceptions it is a statement against Shircks
interest.

But see:
State v. D for Assault of V
Officer Friday on Stand: When I arrived on the scene V came up to me,
pointed to a man and said “D is your man”. Not a legally operative act.
It doesn’t affect anything by saying of it, so hearsay.

2. Statements offered to show the effect on the hearer:

a. notice in general
b. threatening statement of victim of homicide when D claims self-defense
c. statements of victim which would give D a motive for homicide
d. statements of a T.P. which could negate a D’s intent.

Example 1: Letter of Claire sent to David stating: “I am pregnant with your

child”. Not shown to show the matter asserted b/c the matter asserted is that she
was pregnant. It it offered to show the effect that this cause on David.
Example 2: Sue wants to say introduce evidence of a newsletter that said that the
doctor was unqualified to practice medicine”. This comes under notice in general.
She is offering a newsletter that being aware of that newsletter they were
negligent when hiring him. It is offered to put the hospital on notice of his lack of
credentials and show the effect on the reader and make it non-hearsay.
Example 3: D is charged with homicide and his defense is self-defense. He wants
to submit evidence that the victim said to him “I’m going to break your neck, you
little punk”. Not Hearsay. The evidence is not offered to show the truth of the
matter asserted (that Jones was going to break D’s neck), but to show that D
believed he was in imminent danger of serious bodily harm.
 3. Statements offered as circumstantial evidence of the declarant’s state of mind

indirect (NOT DIRECT) evidence of the declarant’s state of mind.

Example of something direct that would not fall under this rule.

Flaco sues Gordo for personal injuries growing out of an auto accident. To
prove that he was in pain after the accident, Flaco calls Wilton to testify
that “I was with Flaco on the night of the accident, and Flaco told me that
his back was really stiff and sore”. Can Flaco offer Wilton’s statement for
a non-hearsay purpose?
No. This is hearsay b/c it is very direct and not circumstantial evidence. It
will come up as hearsay as an exception but not under this rule.

But see:
Mary contests David’s will leaving everything to Monica. She wants to
submit evidence that before dying David kept saying ‘I am Bill’. The
matter asserted is that he says ‘I am Bill? Is Mary offering this to show
that David was Bill Clinton? No. She is offering it to show that his
statement of him being Bill Clinton show indirectly that David is not
competent. Direct evidence that would not be admitted under this rule: ‘I
am crazy, I am crazy’.

Debra charged with possession. Question is whether she has the mens rea
of possessing drugs. He is going to testify “I sold her drugs and told her
they were grade A heroin”. Is seller’s testimony admissible under the
general hearsay rule to show that the baggies contained evidence? No b/c
that would be offered to show the truth of the matter asserted and would
be hearsay. But the seller’s statement is offered to show that she was
aware of the drugs. Knowledge requires awareness that is practical certain.

STATEMENTS OF PARTY OPPONENT: RULE 801(d)(2) [EXEMPTION]

A statement of a party opponent is a statement made by a party and offered

against that party by an adversary.

*Remember this concerns adversary statements. A party cannot admit into

evidence a party’s own out of court statement into evidence as a party
admission.
802(d)(2) A statement is not hearsay if:

i. The statement is offered against a party opponent and it is

1. The party’s own statement in either his individual or
representative capacity (such as the executor of your state)
Example: : P sues D for personal injury resulting from a car
collision. P testifies: “D got out of his car and said to me ‘I am sorry,
I didn’t see that stop sign’”.

Be aware of hearsay within hearsay (805):

Example:
In personal injury Choy’s v. Rhoda from auto accident.
The Choy’s lawyer calls Mom Choy to testify that “A couple of
days after the accident, Rhoda’s neighbor Katie told me that
Rhoda had admitted to her that Rhoda had been speeding just
before the collision”. Katie is not a party opponent.
Whose statement is being offered against whom? Katie said that
Rhoda said. Who’s Rhoda in relation to Mom’s Choy? This is a
statement of a party opponent and Ms. Choy is offering it against
Rhoda so it makes it a statement of a party opponent. It seems
that’s right but is Katie a party opponent? No. (Rule 805 Hearsay
within Hearsay).

Be careful with criminal cases where STATE is PARTY.

Example:
Maso Menos is charged with armed robbery of Des Pacio. Maso
denies being the robber, and on direct examination by defense
counsel, Maso testifies that at the scene he overheard Des Pacio
say “I am not sure Maso is the right person”. And the officer
replied: “I agree, he doesn’t match the description”.
Result= Des’ statement NOT ADMISSIBLE. He is not party
opponent, the state is. Officer’s statement not necessarily admitted
as officer being employee of state: Courts go either way.

2. A statement of which he has manifested his adoption or

belief in its truth (John says: “the defendant ran the red
light”. And the Defendant responded by saying “yeah,
he’s right). Silent also counts as admitting something
(Exception to personal knowledge).
 Example:
State v. Beverly
Beverly denied possessing drugs when officer tried to arrest her.
Beverly’s friend told her “ tell the truth, you know that the drugs
are yours”. Beverly didn’t say anything.
The party opponent (Bev) did something and that allows Danny’s
statement to come in.“Yes” is a clear cut adoption. In order for a
person to admit by silence these must be met:
1. Party heard and understood the statement [yes]
2. Here if you are trying to get something in by silent, you
must show the party had firsthand knowledge of the facts.
[Does Beverly have firsthand knowledge of whose drugs
they are? Yes, she know if it’s her drugs or not]
3. Under these circumstances, would have a reasonable
party denied the statement if not true. [Would Beverly have
respond ‘NO!They’re not mine]. Miranda warnings don’t
apply when someone is arrested only when there is
custodial interrogation.

3. The statement is made by a person authorized to make the

statement. The declarant had speaking authority and was
acting within the scope of that authority. Express or
Implied authority required. “I authorized Graucho
to speak on my behalf”, or sending a letter to your
attorney giving him authorization to speak on
your behalf.
4. The statement is made by an agent or servant about a matter
within the scope of his agency made during the existence
of the agency. The declarant was the party
opponent’s agent or servant; the statement
concerns “a matter within the scope of the agency
or employment”; and the statement was made during the
existence of the relationship. Independent contractors don’t
count. You want someone on the payroll.

Example:
 Rancho Nudslide v. Greed Power (for negligent construction
resulting in destruction of property).
 President of Rancho will testify: Engineer employed by
Greed said “System is Bad.” Admissible? Yes b/c he is on
payroll.
 Engineer’s husband will testify: My Wife said “System is
bad”. Admissible? Yes. This is a statement of an agent of a
party offered against a party.
 Reporter will testify: The president of Greed said after
incident: “Sluice System must have failed. We were
negligent”. Anything that a party opponent says can be used
against whether the party had personal knowledge or not.
801(d)(2)(c) also admissible b/c he is authorized to speak as
a party and anything that he says can come in but it also
comes in under the agency rule.
 Greed’s employee will testify: Rancid Corporation (an
outside consulting firm) 10 years ago prepared a report
stating that “the soil at the dam site is too porous and is
dangerous”. Rancid Co. is not an employee of Greed so its
statement cannot be offered against Rancid under 801(d)(2)
(d), but it can come under 801(d)(2)(c): authorized
admission b/c Rancid was authorized to make statements for
them. HOWEVER, the best answer under a non-hearsay
category: Effect on the Hearer. This shows that the Greed
was aware of the dangerous condition.
 Greed is offering it and Harbinger in relationship to Greed
is a vice-president of Greed. It is his own statement and so it
is hearsay 801(d)(2)(d). HOWEVER, this is not hearsay
because this is being offered to show effect on the hearer. It
would be again giving notice that the property owner would
be negligent/assumption of the risk.

5. Statement made by a co-conspirator and the co-conspirator

made the statement during the course of the conspiracy in
furtherance of the conspiracy. To admit the statement it
must be shown that (i) the conspiracy existed; (ii) the
defendant was part of the conspiracy; (iii) the statements
were made in furtherance of the conspiracy and in
the course of the conspiracy; (iv) by a
 preponderance of the evidence. Be aware that conspiracy
doesn’t start until person accepts to enter the conspiracy
and ends when person is arrested. Statement
proposing to enter into conspiracy doesn’t fall
under this rule. Statement made after arrest,
doesn’t either.

PRIOR STATEMENT BY A WITNESS (RULE 801(D)(1))

A declarant’s out-of-court statement is hearsay even if the declarant testifies at

the trial. 801(d)(1) creates three narrow exceptions to this rule:

A statement is not hearsay if it is a prior statement by a declarant and

that same declarant is also witness who is testifying in trial and is
subject to cross-examination concerning the statement AND:

a. The statement is inconsistent with the declarant’s

testimony and was given under oath in a
deposition, a trial, hearing or other proceeding, OR
b. The statement is consistent with the declarant’s
testimony and is offered to rebut an express or
implied charge against the declarant of recent
fabrication or improper influence or motive, OR
c. The statement is one of identification of a person
made after perceiving the person

A. Inconsistent statement:
Do not confuse this with rule 613 dealing with impeachment. In
impeachment the inconsistent statement made outside of court (e.g.
telling a police officer light was red and in trial that it was green)
was not made under oath! (and is admissible over a hearsay
objection). 801(d)(1)(a) requires the statement to meet the
requirement of 613 but ALSO requires that the previous statement
had been made under oath. If the statement satisfies rule 801(d)(1)
(a) then, it is admissible over a hearsay objection as substantive
 evidence to prove the truth of the matter asserted in the statement
[unlike under 613].
Example:
5 min. after accident W1 tells police officer that A ran red light. In
trial, W1 says that B ran red light. Under 613 [previous statement
not made under oath], the previous statement is admissible
even if hearsay to IMPEACH THE WITNESS/SHOW SHE IS
LYING. If previous statement had been made in a deposition, the
statement would be admissible not only to impeach W1 but also as
substantive evidence that the car ran the red light.
Also, if the witness ADMITS to statement and its truthfulness in
COURT while testifying, it can come as substantive evidence and
not merely for impeachment purposes.

When the party making the out-of-court statement and

testifying is a a party opponent, the PARTY
OPPONENT RULE APPLIES. No need for cross
examination.

Example:
Lisa sues Shane for personal injuries. Lisa testifies that Shane went
through a red light. No cross of Lisa. Shane’s attorney seeks to
question Lisa about a statement made by her that the light
was yellow. Admissible? YES. For impeachment and for
substantive evidence because she is a PARTY
OPPONENT.

*Also keep in mind that rule 613 (extrinsic evidence of non-

collateral matters admitted if witness is afforded opportunity to
explain or deny the same) does not apply to party opponents. no
need for party to have had opportunity to explain or deny here.
even if she didn’t, statement is admitted as party-opponent.

B. CONSISTENT STATEMENTS OFFERED TO REBUT

EXPRESS/IMPLIED CHARGE OF RECENT FABRICATION
OR IMPROPER INFLUENCE OR MOTIVE
The mere fact that W1 makes a statement consistent with
a previous out-of-court statement does not make it
admissible b/c they are irrelevant and usually hearsay.
Rule 801(d)(1)(b) creates a special category of prior
consistent statements – those that are relevant to rebut an
express or implied charge that the declarant recently
fabricated his testimony or has shaped his testimony as a
result of improper influence or motive- that are
admissible to prove the truth of the matter asserted. In
other words, a prior inconsistent statement that rebuts an
accusation of recent fabrication of improper motivation is
relevant in helping the fact finder decide whether, despite
the accusation, to believe the testimony.
To utilize this exception, the party offering the statement
must persuade the judge that four conditions are satisfied:
1. The declarant testifies at trial or hearing and is subject
to cross-examination concerning the statement.
2. The prior statement is consistent with what the
declarant has just testified to at trial
3. At some point in trial an attorney impeaches the
declarant by explicitly or implicitly accusing the
declarant of having recently fabricated his testimony, or
allowing his testimony to be improperly influenced or
motivated
*P’s impeachment of W1 must explicitly or implicitly
accuse W2 of recent fabrication, or of allowing testimony
to be improperly influenced or motivated (by friendship,
a bribe, or bias, or prejudice). If, instead, P’s
impeachment merely tries to show that W2’s testimony is
simply inaccurate or that the jury shouldn’t believe W2
because he is not a truthful person, D will not be able to
use the rule.
4. The prior statement is relevant to rebut the accusation.
 In Tome v. United States the Supreme Court held that a
prior consistent statement is admissible to rebut an
accusation of improper influence or motive only if the
prior statement was made before the improper influence
or motive arose.
(engaged couple example: if fiancé made statement when
witness and him knew each other and were engaged, then
no rebuttal allowed. If, however, it was made when they
didn’t even knew each other, allowed).

C. Statements of Prior Identification of a Person

A statement is not hearsay if the declarant testifies at the

trial or hearing and is subject to cross-examination
concerning the statement, and the statement is: one of
identification of a person made after perceiving the
person.

On June 1st, V is knocked down by two men, and his

wallet is taken. A few minutes later, he flags down a
passing police car and describes the perpetrators. They
are identified in a lineup by V. He doesn’t see them until
March in trial. In trial he is asked by the DA: “Do you
identify the men that knocked you down?” V answers
“yes, I do” and points at them. The jury, however, can
consider that many months have gone by and doubt that
the plaintiff is pointing the right people. Therefore, it is
much more probative to show evidence of the lineup ID.
Fed. Rule 801(d)(1)(c) excepts such out-of-court
identifications from the hearsay definition on grounds of
reliability and necessity.

To invoke this rule the prosecutors must show:

a. Sometime prior to trial declarant perceived a person
and made a statement to someone (usually but not
 necessarily a police officer or prosecutor) identifying
that person.
b. The declarant testifies at trial and is subject to cross-
examination about the statement.

RULE 803: HEARSAY EXCEPTIONS

803(1) PRESENT SENSE IMPRESSION

 The declarant made a statement while or immediately after

perceiving an event or condition.
 The statement describes or explains the event or condition
 Personal knowledge implicitly required
 Broader than (2) in that no startling or unusual event needs to
happen. Narrower in that it must occur while or immediately following
the act. (2) allows more time.

Example:
State v. Bickner for DUI.
Nick is going to say: I was at the regal beagle with Laura and Laura
said “look at Bichner, he is really drunk”. This is a present sense
impression Nick is a witness, Laura is a declarant.

 The declarant made a statement relating to a startling event or

condition
 The declarant was under the stress of excitement caused by the event
or condition at the time the declarant made the statement.
 The declarant has firsthand knowledge of the event
 Broader lapse of time that in (1) allowed.

803(3) THEN-EXISTING MENTAL, EMOTIONAL, PHYSICAL

CONDITION
Statements made by a declarant showing his PRESENT mental,
emotional or physical condition.

For example:
a. Intent: I am going to class today
b. Plan: I plan to go to class today
c. Motive: I hate him
d. Design: My design is. . .
e. Mental feelings: I am depressed
f. Pain: I am writing this in agony
g. Bodily Health: I am sick

 Trustworthiness: Some federal judges read an element of

trustworthiness into the exception. As a result, a judge might exclude
an assertion that otherwise satisfies 803(3) because of a declarant’s
apparent contemporaneous motive to fabricate.

Example: The day before a murder, Defendant tells a friend “I will be

going out of town for the weekend”. The judge may exclude it if he
believes that D was attempting to set up a phony alibi although it satisfies
the foundational elements of Rule 803(3).

 Note the difference between the common law non-hearsay admissal

and the then-existing exception:

Example:
State v. Rausch for Murder of Will Jones on June 1 [self-defense]
W: the night before the murder occurred, Rausch said: “I’m afraid of
Jones”
803(3): Hearsay exception: direct evidence of his then-existing
state of mind. If he was afraid on May 31st tends to make it more
likely that he was afraid on June 1 and tends to make his claim of
self-defense more likely.

W: Raush told me: “Will Jones always carries a gun”

We can arguably infer that he is afraid of Will Jones and tells us
something indirectly of his state of mind and this could
 come up as non-hearsay evidence of circumstantial
evidence (note that this isn’t shown to prove the truth
of the matter asserted but his state of mind).

 Second Party Hillmon: only statements of intent by a declarant

proving his future conduct are admissible. Statements
evidencing a 2nd party’s future intentions are not admitted.
However, if admitted:
1. Courts put a limiting instruction so that jurors only consider
the first person’s future intentions.
2. Accept the second person’s intentions only if there is
additional evidence or if it is unlikely that the declarant
would have committed the future act w/o the 2nd person.

 State of Mind Exception:

Shepard v. U.S.
Husband accused of murdering wife. Defense: wife committed
suicide. State seeks to offer evidence of Maid stating that: Wife
said “ My husband poisoned me”.

Cardozo: Even if statements offered for non-hearsay purpose of

showing circumstantially that she had the will to live, their
modest probative value for this purpose was overcome by their
potential for prejudice.

State of mind exception does not encompass statements directed

toward past acts allegedly committed by another person.

803(4) STATEMENTS MADE FOR PURPOSES OF MEDICAL

DIAGNOSIS

A sues B for personal injuries resulting from a car accident. Indy is in

physical therapy for many months following the accident. Her
physician testifies about Indy’s right arm soreness. Indy’s statements
to her physician are admissible to prove the extent and duration of the
injuries allegedly caused by the accident. Indy’s statement regarding
past symptoms are admissible only under rule 803(4).

803(6) , 803(7): BUSINESS RECORDS EXCEPTIONS

If you have a statement that is part of the business record it presumably

is reliable [trustworthiness]. A record made by a person with
knowledge or information transmitted from a person with knowledge
(boss to record keeper).

 Business entity produces memorandum, report, record, or data

compilation in any form of acts, events, conditions, opinions or
diagnoses concerning the entity’s business practices.
 Entity representatives have personal knowledge.
 The information as recorded near the time that the business-
related activity occurred.
 To record the evidence is business practice.
 The acts, events, conditions, opinions, or diagnoses relate to a
regularly conducted business activity.
 Unless not trustworthy

Business Records and Confrontation Clause

Business records are non-testimonial. Therefore, no confrontation

clause issues are even considered. In Melendez v. Diaz the Court said
that police reports are clearly intended to be used prosecutorially.
Police reports do not fall within business records. Normally you can
make an argument that police records do fall under the business record
exception. In a criminal case is clearly not going to come in b/c it is
testimonial: intended to be used prosecutorially

803(8) PUBLIC RECORDS

STATE V. DEFENDANT for possession with intent to sell

 A report is sent to police report saying substance found on D was in
fact cocaine. Instead of having scientist testify, prosecution seeks to
admit report. Under 803(8) the record would be kept out and police
would have to call the scientist. What was done before Melendez-Diaz
is that we are offering under 803(6) which is the byrea of criminal
inecstition under regular business activities made by someone in the
business entity.

OATS: If report inadmissible under 803(8) it is also inadmissible

under 803(6). If you were in a jurisdiction were the Oats doctrine
applies, it would also not be admissible under 803(6). Since Melendez
Diaz this is no longer at issue. Investigation involving this type if
testimonial and the confrontation clause would made it inadmissible
and force prosecution to call the scientists.

RULE 804: THE “DECLARANT UNAVAILABLE” EXCEPTIONS

 In contract with exceptions in 803 in which it is irrelevant if declarant is

available or unavailable, 804 exceptions refer exclusively to instances where
defendants are unavailable.
 The party offering the statement must show that:
The declarant is unavailable by fitting one of the provisions in 804(a), and
also demonstrate that the statement fits one of the provisions in 804(b).

804(a) Declarant is unavailable when:

1. Declarant is unavailable by ruling of the court on the ground of

privilege
2. Declarant refuses to testify concerning the subject matter of the
declarant’s statement despite a Court’s order to do so
3. Declarant testifies to a lack of memory of the statement made
out of court
4. Declarant is unable to testify because of death or then existing
physical or mental illness/infirmity
5. Declarant is absent from the hearing and the proponent of
statement has been unable to procure the declarant’s attendance
by process of reasonable means (search hospital records, call
utility companies, contact last known employers, etc.)
• To prevent parties from intentionally disappearing
in order for his testimony to be procured without the
party being present, rule 804(a) provides that a
declarant is not unavailable if the unavailability is
due to the procurement or wrongdoing of the
proponent of a statement for the purpose of
preventing the witness from attending or testifying.

804(b) has two general requirements: the offering party must show
unavailability of declarant AND that the declarant
had firsthand knowledge of what she spoke of in her
statement.
The following are not excluded if the general requirements are met:

I. Former Testimony
II. Dying Declarations (only available in homicide + civil cases)
III. Statements Against Interest: one that a reasonable declarant
wouldn’t have made if it weren’t true b/c at the time it was made
it: (a)(i) was contrary to declarant’s pecuniary interest (“I owe
$”), (ii) or contrary to his proprietary interest (“It’s not my corn,
it’s Hanson’s”); (b)tended to subject the declarant to civil or
criminal liability; OR (c) tended to render invalid a claim by the
declarant against another.
In final, show by a preponderance that there is an employment relationship.