Hearsay Outline

Hearsay is out of court oral, written, or nonverbal assertion is hearsay when it is made by a declarant not while testifying
at the current trial or hearing and is offered into evidence by a party to prove the truth of the matter asserted in the
statement. It is inadmissible. What is not hearsay:
 When the truth of the statement doesn’t matter. When the evidence is offered NOT FOR ITS TRUTH but as
evidence
o of conduct not intended as an assertion: to prove that the actor acted in conformity with a particular
belief
o to prove that a statement was made at all. The truth doesn’t matter
o to show the effect of the statement on the witness
o to show state of mind of someone, when that matters
o to show that someone was on notice of something
o of independent legal significance of the evidence. Such as elements of a claim/crime, contract
o to impeach the credibility of a witness
 Exclusions: NOT considered hearsay
o Prior statements of party opponents. Party admissions. Need one of these requirements:
 The statement was made by the party in an individual or representative capacity
 The party adopts or believes the statement to be true. Knowledge of them not required,
adoption of the statement may be shown in any manner
 The statement was made by a person whom the party authorized to speak on the subject
 The statement was made by the party’s agent or employee on a matter within the scope of that
relationship while it existed. Agent may speak for principal, not other way around
 The statement was made by the party’s co-conspirator during and in furtherance of conspiracy
o Prior Statements of a Witness – requires the out of court declarant be a witness now testifying under
oath and subject to cross examination. The prior statement must also be:
 Inconsistent with the witness’s current testimony and the prior statement was given under oath
at a trial/hearing/other proceeding. Past cross examination not required
 Consistent with the witness’s current testimony and must be offered to rebut a charge that the
witness is lying now, that the witness has a recent improper motive, or to rehabilitate the
credibility of the witness. No oath/proceeding required
 Prior Identifications – the witness identified someone earlier, only requires that the witness
themselves has made the identification.
 Exceptions: ARE hearsay but are allowed.
o Exceptions when the declarant must be unavailable
  Former testimony - that was given as a witness under oath at a formal proceeding
(trial/hearing/deposition) and is now offered against a party who then had, or in civil cases, whose
predecessor in interest had, an opportunity and similar motive to develop it by DX/CX
 Dying declarations - in a prosecution of homicide or in a civil case, a statement that the
declarant, while believing the declarant’s death to be imminent, made about its cause or
circumstances
 Statements against interest – contrary to interest, invalidates declarant’s claim against another,
exposes declarant to civil or criminal liability
o Exceptions where the availability of the declarant doesn’t matter
 Present sense impressions – during or seconds after
 Excited utterance – as long as the declarant is still excited
 Then-existing mental, emotional, or physical condition – including motive/intent/plan but not
including backwards looking statements of memory or belief
 Statements made for a medical diagnosis or treatment
 Records of a regularly conducted activity
 Absence of a record of a regularly conducted activity
 Public records
 Public records of vital statistics – records of birth/death/marriage
 Absence of a public record
o Residual Great Hearsay Exception – in the interests of trustworthiness, necessity, and probativeness
 The right to object to hearsay can be forfeited