Is it Hearsay?
801(c)
1. Out-Of- Court statement
2. Offered to prove [the truth of the matter] asserted therein
Not Hearsay
801(d)(1) A Declarant-Witness's Prior Out-Of-Court Statement
1. Declarant-Witness is the same person
2. At trial
3. Subject to cross
(A) Prior Inconsistent Statement
Substantive purposes to prove the truth of the matter as long as the statement was made under oath
Impeachment purposes
(B) Prior Consistent Statement
Cannot be used until credibility is attacked first
i. When the other side says this declarant witness has a specific motive to lie after the prior consistent statement was made
ii. To Rehabilitate the declarant's credibility when attacked on another ground
(C) Prior Statements of Identification
801(d)(2) An Opposing Party's Statement Offered Against that Party
(A) Made by the Party
A party does not get to offer their own statement against themselves, it has to be offered against them by opposing counsel
(B) Adopted or Believed to be True
Silence / Unless 5th Amendment or Joking
(C) By a Person Who Was Authorized to Make a Statement
Does that person have the authority by the party to make the statement?
(D) Agent or Employee On a Matter Within the Scope of Employment
Apply the usual test for agency: Made within the scope of employment?
(E) By a Party's Co-Conspirator During and in Furtherance of the Conspiracy
Comes in against ALL members of the conspiracy whether or not they were present when the statements were made
Bruton Rule:
"This is an invasion of my Constitutional rights if evidence not admissible against me is somehow used against me"
1. The statement has to be "sanitized" in any reference to co-defendants
when the statement is only admissible to one of the defendants
2. If it cannot be sufficiently sanitized then the co-defendants are entitled to a separate trial
3. If it can be sanitized, then the question is what constitutes a sufficient sanitation in references to others
Is There An Exception?
804(a) Declarant Is Unavailable
804(b) Unavailable Hearsay Exceptions
(1) Former Testimony
DEBI
(A) Given as a witness at trial, hearing, lawful deposition, is now being offered against that party
1. Dead
(B) Who's predecessor had a similar motive to develop it on direct, cross, or redirect
2. Exercising a Privilege Beyond
a Subpoena Power
(2) Dying Declaration
In a prosecution for Homicide or in a Civil Action a statement about the causes and circumstances that
the declarant made while believing that death was imminent / Supersedes Crawford
3. Incompetent
U
Even if they show up, but can't
remember the subject matter
of the out-of-court statement
(3) Declaration Against Interest
(A) Penal or Pecuniary statement made about themselves
(B) Is supported by corroborating circumstances that clearly indicate its trustworthiness
If the statement exculpates the defendant and inculpates another; must show:
a) The witness is DEBI
b) Provide some corroborating evidence of truth to the statement
(4) Statement of Personal or Family History
(A) Statement about declarant's own birth, adoption, legitimacy, ancestry, or marriage, or similar facts of personal or family
history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) Another person concerning any of these facts, as well as death, if the declarant was related to the person by blood,
adoption, or marriage or was so intimately associated with the person's family that the declarant's info is likely accurate
(6) Forfeiture by Flight of a Witness (Forfeiture by Wrongdoing)
A statement offered against a party that wrongfully caused or contributed in wrongfully causing the
declarant's unavailability as a witness, and did so intending that result
Availability
Doesn't Matter
803 Spontaneous Exceptions
(1) Present Sense Impression
Statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
(2) Excited Utterance
Statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused
(3) Then-Existing Mental, Emotional, or Physical Condition
S
1) Statement of the declarant's then-existing state of mind:
1. Motive
2. Intent
3. Plan
2) Statement of the declarant's then-existing emotional, sensory, or physical condition:
1. Mental Feeling
2. Pain
3. Bodily Health
NOT including a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to the validity or terms of the declarant's will
(4) Statement Made for Medical Diagnosis or Treatment
(A) Is made for - and is reasonably pertinent to - medical diagnosis or treatment; and
(B) Describes medical history; past or present symptoms or sensations; their inception; or their general cause
Availability
Doesn't Matter
803 Records Exceptions
(5) Recorded Recollection (Past)
a record that:
(A) Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) Was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) Accurately reflects the witness's knowledge
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party
R
(6) Records of a Regularly Conducted Activity (Business Records)
a record of an act, event, condition, opinion, or diagnosis if:
(A) The record was made at or near the time by -- or from information transmitted by -- someone with knowledge
(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit
(C) Making the record was a regular practice of that activity
(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902
(E) The opponent does not show that the source of info or the method or circumstances of preparation indicate a lack of trustworthiness