HEARSAY

Hearsay is an out of court statement that is being offered to “prove the truth of the matter asserted” or in
other words, you are using an out of court statement to prove its contents as true. A statement can be
anything, including words, a writing, or even nonverbal conduct that is taken to be asserting a response
(e.g.: “thumbs up” or the middle finger). It has to come from a human being (cannot be a computer, a robot,
a clock or a dog)

Courts generally do not allow hearsay. This is because the statement will tend to be unreliable and could be
prejudicial to the party that the statement is being offered against. For example, we are concerned that
witnesses may be lying on the stand about something they allegedly heard someone said. Even if the
testimony was made in good faith, we are concerned that the witness’s memory of what was being said is
impacted because some time had happened. Often times, the witness might not have personal knowledge
of what the statement is about.

Preliminary questions:
1. Is this a statement?
a. Statements can be oral, written (documentary evidence)
b. Conduct
i. Assertive or responsive conduct - would be considered as a statement
ii. Conduct that is not responsive or non-assertive conduct, would not be considered a
statement
c. Must be made by a human being - if it is made by a manmade device or an animal, this is not
a statement. It does not matter if it comes from a robot or a talking parrot
2. When was the statement made?
a. In court - if the statement is made in court, the declarant can be cross-examined on reliability
and credibility. This does not meet the definition of hearsay
b. Anywhere else - this is an out of court statement, which can be hearsay
3. What is the statement being offered for?
a. Impeachment of a witness - nonhearsay, only if a prior inconsistent statement is being used
which was made under oath at a deposition, a hearing, or some proceeding
b. State of mind (knowledge, motive)
c. The truth of the statement - hearsay, unless subject to exceptions

HEARSAY EXCEPTIONS:
Out of court statements that are not hearsay (FRE 801)
Not being offered to prove the truth of the matter asserted
Examples:
State of Mind: you are using the out of court statement to prove the person’s state of mind when the
person said it (someone gets run over by a car says randomly “I like Starburst” - you are not proving
that the person likes Starburst, but that the person’s mental state is altered after being run over by a
car)
Notice: (“hey landlord, there’s a crack on the floor and I almost tripped on it” - not to prove that there
is a crack, but that the landlord should have been aware of the crack after that statement),
Perception: (“it looks like Barney!” - not to prove that a toy looks like that purple dinosaur, but that
kids think a certain toy looks like Barney)

Exclusion From Hearsay Rule Explanation

Opposing Party Statements Statements made by an opposing party or a representative (this is

both for impeachment and as substantive evidence), they can also be
statements adopted by the party as being true, statements by a
 party’s agent or employee (vicarious), or even statements by
co-conspirators in the furtherance of a conspiracy

Witness’s Prior Statements
The witness must be the same person as the declarant of the
statement to be offered, and the witness must be subject to cross
examination
-could be a prior inconsistent statement to impeach a witness, where
the statement used was made under oath, such as a deposition, an
administrative hearing, a trial, grand jury, or could be a police
statement
-or a prior consistent statement to rehabilitate a witness who had
been impeached
-or prior statement of identification (the declarant must be the same
as the witness, who must be present to testify)

Hearsay, but an exception applies and the declarant is unavailable to testify (FRE 804)
Declarant’s unavailability:
Declarant-witness doesn’t remember, declarant-witness chooses not to testify, declarant invokes a privilege
to not testify (such as the Fifth Am. privilege against self-incrimination), or the declarant is dead or has a
physical or mental condition that prevents the person from testifying

Hearsay Exception Explanation

Former Testimony Declarant made the statement under oath at a deposition, trial, or
some other proceeding (this is similar to the prior inconsistent
statement rule, except that under FRE 801, the declarant can testify
while here the declarant is unavailable and you wish to elicit the
unavailable declarant’s previous testimony)

Dying Declaration Declarant made a statement about the circumstances of death under
fear of impending death. The declarant does not have to actually die,
but have to anticipate death. This only applies to homicides and civil
cases and does not apply in other criminal cases.
(Person gets knocked out by a mugger who had a gun to the victim’s
head. Right before the victim gets knocked out, victim says “he’s
going to kill me!” Victim doesn’t die but is in a coma - this could be a
dying declaration; compare person gets run over by car and in his
last moments says “I want ice cream” - not a dying declaration)

Statements Against Interest
The theory is that when the unavailable declarant did something
wrong and anticipates civil or criminal liability, the person will tend not
to lie and this statement would be more reliable
-declarant must believe it to be true
-and that it would affect pecuniary or proprietary interest (like being
sued for damages)
-and in a criminal case, must be supported by corroborating
circumstances that supports the truthiness of the statement

Family History Don’t worry about this

Hearsay, but an exception applies regardless of the declarant’s availability (FRE 803)
Here we are not concerned if the declarant is unavailable to testify under these circumstances
Hearsay Exception
Present Sense Impression
Excited Utterance
Then Existing Physical or
Mental Condition
Statement About Medical
Conditions For Diagnosis or
Treatment
Recorded Recollection
Business Record Exception
Learned Treatises
And much more, but these are the most common exceptions under FRE 803.
Explanation
A person’s observation of events as the person perceived them, or it
could be a very short timeframe after the person observed it.
Look for the present tense (“The sun is shining” or “the driver is
running a red light”)
Made under the stress of an exciting or shocking event, tip: look for
the exclamation point (“OMG! HE HAD A KNIFE ON HIM AND WAS
RUNNING TOWARDS ME!”
But note, the person must have made the statement while under the
stress, which is a short period of time. Person cannot have calmed
down and reflect on it later
Relates to the person’s sensation or state at the time the person felt it
(“I feel tired” versus “I felt tired last night” - first would be OK, the
second one would not be)
Look for the present tense
The statement must reasonably relate to the person’s diagnosis or
treatment, such as medical history or illness or physical/mental
condition. Anything that the patient says suggesting another person’s
criminal or civil liability does not fall within the ambit of this rule (“I fell
down a flight of stairs” is ok, but not “he pushed me down a flight of
stairs” because that implicates liability)
This comes up when the witness does not remember even if the
examining attorney attempted to refresh her recollection. Witness
previously made a statement or adopted a statement, and had at one
point remembered the contents. A recording (including a writing or
audio recording) was made while the witness’s memory was fresh.
The examining attorney may be only allowed to read the writing into
evidence
The statement is made as part of a company or organization’s regular
course of business. Such record-keeping must be a regular practice
for the business, and that the record at the same time an act or event
or diagnosis is being made. Bank statements, billing receipts, and
hospital records fall into this ground
This comes up for expert witnesses (like doctors or forensic experts),
where either on direct, the examining attorney relies on portions of a
treatise or a journal to develop and elicit testimony, or on cross, for
the examining attorney to attack the expert’s testimony. In either
case, the expert must receive the treatise as reliable authority, or
reliable by another expert or through judicial notice. It is only read into
evidence; it cannot be shown to the finder of fact
DOUBLE HEARSAY​ or ​HEARSAY WITHIN HEARSAY
If an out of court statement (hearsay) contains hearsay statements within, for the entire statement to be
admissible, there must be an exclusionary (not hearsay, FRE 801) or an exception to the hearsay rule.
Classic example is a medical record (out of court statement) contains statements made by the patient
(hearsay). The record could be excepted under the business records exception and the patient’s remarks
could fall under the statement for diagnosis or treatment exception.

CONSTITUTIONAL REQUIREMENT: THE CONFRONTATION CLAUSE

In a criminal case, the defendant must be able to confront (cross examine) the original declarant who gave
testimonial evidence that is being used by the prosecution in a trial against the defendant. Thus the
testimony comes from a testimonial source, like a statement to the police made in furtherance of a crime
investigation, the declarant must be available in court to testify.