Hearsay Exceptions Cheat Sheet

Here's a quick cheat sheet - you can get through 99% of hearsay stuff if you know:  Hearsay: (1) Out of court statement (2) offered for the truth of the matter.  Non-Hearsay purposes: mental state, notice, duress, impeachment, independent operative legal effect (non-exclusive list). ===== Hearsay Exemptions: 1. Prior inconsistent statement under oath. 2. Prior consistent statement to rebut charge of recent fabrication made before motive to lie arose. 3. Prior identification. 4. Admission of a party-opponent. Rationales: 1. If someone was under oath at the prior time, it makes it more likely that one of the two statements is true, and the jury gets to decide which - it's an issue of weight, not really admissibility. 2. The idea here is that the prior consistent statement reinforces the truth of the subsequent statement in the light of a reason to lie. 3. Past identifications aren't really statements per se - they are sort of the same as a then-existing mental/physical state. ===== Hearsay Exceptions Requiring Unavailability: 1. Declaration against interest (three P's rule - objectively against a pecuniary, proprietary, or penal interest). 2. Dying declaration (use in homicide or civil cases ONLY - requires knowledge of imminent death + testimony about the cause of death + personal knowledge of subject matter) 3. Prior testimony (under oath + similar motive to develop cross) 4. Personal/Family History 5. Statement offered against a party wrongfully causing the declarant's unavailability. Rationales: 1. Declarations against interest have a heightened sense of veracity - why say something that's not in your interest unless it's true? 2. When someone knows they are going to die, it's more likely they will tell the truth simple as that. 3. If someone has testified under oath where there was a similar motive to develop cross, it's considered almost, or as good as current testimony. But remember they must be unavailable - it's kind of a replacement for them being at trial. 4. Personal/Family History isn't something people would usually have a motive to lie about. 5. This is kind of a fair-play reason - if one party wrongfully causes unavailability, statements against them explaining why are admissible. ===== Hearsay Exceptions where availability is immaterial: 1. Excited utterance (related to a shocking event while still excited) (or, in some jurisdictions, when re-excited). 2. Present sense impression (while sensing or immediately after). 3. State of mind (emotions, sensations, physical condition). 4. Past recollection recorded (once knew, forgot, made writing when fresh, vouches for accuracy). 5. Business records (regular course of business + made soon after event + authenticated). 6. Medical treatment (diagnosis or treatment; excludes statements of fault). Rationales: 1. Quick statements while shocked indicate the lack of time to formulate a lie. 2. Present sense impression is the same rationale - if you're talking about it while perceiving or shortly thereafter, it's unlikely you had time to think up a lie. 3. States of mind... not sure about this one, but possibly that it's so subjective it wouldn't be corroborate-able. They're definitely important to a case, so excluding them would be unfair, and the threat of cross can keep people in line. 4. Past recollection recorded (and present recollection refreshed) are based on the principle that the previous record is likely more accurate than the current testimony. 5. Business records not prepared in the course of litigation are usually presumed accurate because businesses need to rely on them to make money and function, so it's unlikely they would be inaccurate. 6. When someone goes for medical treatment, it's unlikely they will lie to the doctor and possibly risk not being treated for whatever ails them. LAB REPORTS So first, make sure you're not tempted into trying to get a lab report in as a public record - there is some question as to this issue in various jurisdictions, but generally, the lab preparing the report is not part of the sphere of "public" offices that would make the report a public record. The limited circumstance where this would be the case is if the lab is actually a part of the police department or other branch of the state. Otherwise, the lab is independent, and is producing business records, not public records. The other thing to keep in mind is that even if the lab is producing public records, the principle behind Oates is that the report must be produced for some other purpose than to be used against the defendant. The state will argue that the purpose is accurate investigation of the alleged offense... but is that really true? The business record exception... remember that the actual name of the rule is "regularly conducted activity" - which helps clarify that it's not just "business" records (and see 804(6)(B) - "whether or not for profit"). The cases you will want to touch on are Crawford (query - are the lab reports testimonial? (Yes)) and Daubert (query - was the science reliable? (Who knows...)). Assume no confrontation clause issues, and the tech who ran the report is there and willing to testify. This is actually where most problems arise. If we are assuming these, then so long as the report passes Daubert muster, the report is likely admissible. BUT - and you may not have come across this in a Crim Pro class yet - the jurisdiction's CrR's may require advance notification of the intent to use the report. And just to bake your noodle a bit more... is not a report of BAC an expression of a then-existing state of bodily health? could someone explain the difference between Rule 404 Character and Rule 406 Habit? Is habit evidence just a more well-established and trustworthy form of character evidence? No - this is the rule for habit: repeated reaction to repeated stimuli. Habit is used for things like "Bob always looks both ways before crossing the street" or "Jim never stops at that particular stop sign." Contrasted with character evidence... you could take the same kinds of examples: "Bob is the type of person would would always look both ways before crossing the street" - but this doesn't really answer your question, I think. Character evidence is prohibited because it leads the jury to infer a correlation from character. For example - the fact that Jill is an alcoholic doesn't make it more/less likely that she robbed a liquor store. You could think of it this way - it's similar to habit evidence in that it attempts to elicit conformity with that character - but note the use of "acted in accordance" with that character. The idea behind character evidence is the question of whether a character trait means someone acted that way on a particular occasion. Or perhaps more simply:  Repeated reaction, different stimuli - character.  Repeated reaction, repeated stimuli - habit. Differences from FRE 609: Note the difference between MI ER 609(b) and FRE 609(b). Note too in FRE 609(a), the use of must (vs. shall not in MI), and how the probative/prejudicial balancing test is different for criminal defendants. There are three general principles for FRE 609:  10-year window; If outside that window, probative/prejudicial balancing and advance notice is required.  Felonies - always get FRE 403 balancing.  Crimes of dishonesty - do not need balancing and are presumptively admissible.