Hearsay Flowchart

FRE Article VIII; Rule 801(a)-(c) HEARSAY An oral, written, or non-verbal (intended) assertion by declarant not made while testifying at the current trial/hearing; and party offers in evidence to prove the truth of the matter asserted. If the statement does not go to the truth of the matter asserted, it’s not hearsay. So, it could go to the listener/reader’s state of mind or to the victim’s state of mind (knowledge of sexually abused child) 801(d) Non-Hearsay 1. A W’s Prior Statement fi sei tT se sosrc2 jub& s A. If inconsistent w/ testimony/given under penalty/ perjury @ other proceeding B. If consistent – to rebut a fabrication/ motive allegation subst ev of C.guilt ID a pers in ct as some1 W ID’ed be4 2. An Opp Party Stmnt A.A Party’s own or a pty’s rep’s stmnt 6yo saying mom & dad fighting before wreck. B. believed to be true Where’s “Timmy”? Silence, C. Done by one auth’d to make statement Doesn’t = D. Made by agnt/ employee+ during and w/in scope of relationship E. Made by co-consp In furtherance of conspiracy C/D/E nt alone sufficnt 803 Exceptions (Declarant’s Presence Immaterial) Except with # 5 804(b) Exceptions; Declarant Unavailable 1. 1. Former Testimony recorded in a Present Sense Impression statement made at the time of the event or right after. little or no time for calculated fabrication. often a 2nd wit who heard the statement & can vouch it was said. (this is not req’d) 2. Excited Utterance startling event statement relates to event itself or to the event’s origin or cause. made too quick to fabricate other evidence that that event occurred is required. -3. excitement req’d – Then existing mental, emot’l or phys condition statement of pain, anger, rage, intent. is a way to intro something thing that may infer substantive guilt ‘only’ to show ‘state of mind’. Hillmon, my intent to meet you somewhere can infer your intent to be there too. Isn’t what you did in p st: It’s something you 4. For medical diagnosis or treatment: if statement was made for purposes of diagnosis or treatment. describes pt’s med condition or personal history. is reasonably pertinent to dx or tx (Psych may need to ID “father” for tx v. GP cares less who hit you just treats) - 5. Recorded Recollection (see also 612: which uses a writing only to refresh memory) wit must be present to cross Wit once knew 6. Record of regularly conducted activity. made at or near time of event record was formed by a person having personal knowledge of the event. record was kept in the course of regular business activity. the record’s making is a regular business practice. not for litigation preparation. (ok when stated by outsider only if he had duty to report.) 7. Absence of a bus record you’d expect to find can be used as evidence too. 8. previous hearing can be used only when the opp had the opportunity to cross witness: on same subject matter and in same type of proceeding. 2. Dying Declaration. don’t have to die but there must be a settled expectation of death w/in , mins, hrs, maybe days (not likely). must relate to causes and circumstances of what happened. 3. Statement against interest. Civil – useable only if reasonable person would have never made it if they’d known it may make them liable. Criminal – usable only if there exists other circumstances that give the statement trustworthiness. Factors Relevant to Trustworthiness Relationship between declarant and Δ Stmnt made voluntarily after Miranda Statement made to curry favor Motive for declarant to misrepresent Character of speaker Did others hear statement Made spontaneously Timing of declaration and relationship of speaker and witness Corroboration Availability of declarant REALLY against interest Public Records and Reports - Stuff kept as part of regular activity. Must meet A, B or C. The stuff is supposed to be fact but conclusion on opinion ok? majority - police reports can’t be used unless ‘administrative’ minority - no cop reports ever. no ‘conflictual’ info (made for trial) only tame like in 9. If it doesn’t meet this it can’t go under 803(6) 18.test, Learned Treatises - must be presented with expert so expert can be crossed. must be done before 10.case Absence rests. of a pub record you’d expect to see is ev too. 6. Forfeiture by Wrongdoing. If Δ does illegal act to keep witness from testifying, previous statements by witness may be used in court. Judge finds whether Δ did the act under FRE 104(a) away from jury. Judge can hear anything to decide Exception to confrontation rule 805 Hearsay w/in Hearsay - admissible If all statements meet exception 807 Residual Exception Five Elements Proponent must notify opposition sufficiently in advance of trial. Statement must have circumstantial trustworthiness guarantees = to the exceptions FRE 803 – FRE 804. Statement must be offered as evidence of material fact. Statement must be more probative on the point than any other evidence proponent can reasonably get. Admission must serve general interests of FRE and justice. Ohio v. Roberts’ 2-pronged test: hearsay must fall under a well-founded exception & if not, then it must be supported by particular guarantees of Narrowed by: trustworthiness not found extrinsically Crawford v. Washington Out of court “testimonials” excluded unless Δ can cross declarant at trial or had “804(b) (1)-like” opportunity. Never used in Civil trials Never used against the prosecution Testimonials (admissible) can be: Exparte testimony at prelim hearing Statements in police interrogation affidavits, depositions, confession ** stmnt made under circ that would make a wit reas think it would come up later in trial statement to confidential informer CoΔ’s confession Plea allocations and Grand Jury testimony (he says this one’s big) Statement of non-testifying coΔ NonTestimonials (admissible) are: Coconspirator statements Dying Declarations Business records Statements going to something other than the truth of the matter asserted Forfeiture by wrongdoing Statements banned by Crawford 3rd party statements against penal interest offered by the accused. Pretty much all of FRE 807. Statements by abused kids; unless you can use “medical exception.”