hearsay
I. Hearsay in General
A. 5-step Hearsay Matrix
1. Does evidence constitute an out-of-court statement?
2. If so, for what purpose does the offering (or “proferring”) party offer the OOC statement?
3. If the offering party offers an OOC statement for a non-hearsay purpose (that is, for a purpose that does not depend on the statement’s accuracy), is that purpose relevant and if so is its probative value substantially outweighed by the risk of unfair prejudice or the other factors set for th in Rule 403?
4. If the offering party offers an OOC statement for its truth, can the party satisfy the foundational requirements of any of the numerous exemptions or exceptions to the hearsay rule?
5. Even if an OOC statement is admissible for purposes of the hearsay rule, does the Confrontation Clause require its exclusion (necessary only when prosecutors offer hearsay statements into evidence against criminal ∆s)?
II. Non-Hearsay
A. Overview
1. Statement not dependent on its truth
2. Statement offered to show the effect on the hearer
3. Verbal act or legally operative statement
4. Non-assertive conduct offered to prove a fact of consequence or an internal state
5. Implied assertions not intended to communicate the fact of consequence
B. Assertion relevant to declarant’s state of mind
1. Non-assertive statements
2. Typically arises when statement does not directly assert the declarant’s mental or emotional condition but condition can be inferred from the words.
3. Declarant’s subjective belief, relevant when
a. The declarant’s belief is itself a material fact
b. The declarant’s belief is circumstantial evidence of the declarant’s behavior
4. Examples
a. “my husband doesn’t love me”
b. “He is seeing other women”
c. “I am going to get a divorce”
C. Assertion relevant to listener’s state of mind
1. What a person heard before or during the event effected how they responded.
2. Out of court statement is introduced to show that effect.
3. That information will have legal significance for the assessment of guilt or liability.
4. Ex. ∆ on trial for tax evasion testifies that his accountant told him the deductions he made were legal.
5. Notice
a. Whether or not the party had notice is significant and relevant to a determination of liability. (tort & contract)
b. Notice is an out-of-court statement, offered to show person was told.
c. When an out-of-court statement is being offered to show the declarant’s then existing awareness or knowledge of a fact, then it is not hearsay.
d. Witness who heard/saw them being told is subject to cross.
D. Assertion offered as a verbal act
1. AKA “words of independent legal significance” or “legally operative conduct”
2. What are legally operative words?
a. Some words are given legal significance within the legal system.
b. These words essentially become an “event” because they have legal significance if they occur.
c. The “legal event” occurs in front of a witness who is in court reporting it.
d. We can test the witness’ memory, perception, sincerity and the ambiguity.
3. Requirements
a. Statement
b. Offered to prove that statement was made.
c. Making 0f statement has legal significance
4. Examples
a. “I’ve just robbed a bank and need help”
b. “Hide in the cellar. You’ll be safe there.”
E. Prior Statements of the Witness: 613(b)
1. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice require otherwise. (admissions excluded)
F. Assertion offered to contradict/impeach testimony (“prior inconsistent statement”)
1. 2 statements about a topic: one during testimony and one prior to it
non-hearsay purpose (W says X in dep, but Y on stand)
ii. Can ALSO USE FOR HEARSAY PURPOSE: offering for truth of the matter.
b. Requirements to satisfy 801(d)(1)(A)
i. Is the declarant present and subject to cross concerning the statement
ii. Was it a prior inconsistent statement
iii. Was it made under oath
iv. Was it subject to the penalty of perjury at another proceeding or deposition?
c. Memory
i. If you don’t remember and then you remember, that is inconsistent: Cts recognize that memory does not improve w/ time—suddenly remembering may still be treated as inconsistent, however a rationale or explanation for not remembering on the prior occasion may be admitted.
ii. If someone remembers and then forgets, the ct may or may not admit; may go to trustworthiness; cts are split; we won’t see this on an exam.
iii. Intentional forgetting on the stand: judge might get annoyed; remember: judge plays the role of fact finder and decides if it is inconsistent or not.
d. Statements in affidavit not admissible under 801(d)(1)(A) b/c it is under oath, but not subject to penalty of perjury at proceeding or deposition.
e. Setting up an inconsistency?
i. If a witness is called merely to offer his prior inconsistent statement for impeachment purposes, what result? At common law this was impermissible. Today, however, as long as the reason for the use of the inconsistent statement is not solely to impeach on that small point, the ct will permit.
A. Essential witness test
B. Primary purpose test
ii. If a witness is called merely to offer a prior inconsistent statement which qualifies under 801(d)(1)(A), what result?
A. Rule 607
3. FRE 801(d)(1)(B): consistent statements out of court
