400, 375
Is it hearsay?
FRE 801(c) – Hearsay
1) Out of court 2) statement offered 3) to prove truth of the matter asserted (statement).
1)
2)
3)
Out of court, time and space, in this trial, within the confines of the court
Statement - Oral, written, non-verbal (conduct)
Truth – to discredit me, is not offering statement to prove truth. “Do we care whether statement is
true or false?”
a. Truth to show statement - okay
i. Offered to show effect on listener
1. I want to introduce a statement made, that had an effect on me for the
purpose of showing that statement caused me to XYZ...
ii. Show declarant’s state of mind
1. Introducing this to show my statements are not in proper state of mind
iii. Offered for impeachment purposes
1. Attacking Witness’s credibility
2. Why are we introducing statements? Do we care if they’re real or not?
Rather, we want to show they’re not credible…
iv. Independent Legal significance
1. We need to analyze X to analyze something that has legal significance
b. Truth for any other reason not okay
FRE 801 (d) – Not Hearsay
801 (d) (1) – declarant – witness prior statement
A) Prior inconsistent statement
a. Out of court says one thing and at court says another
B) Prior consistent statement
a. Out of court says one thing and at court says the same
b. Generally speaking, cannot bolster truthfulness before credibility is attacked
c. Prior statement must be made before motive established
C) Prior statement of identification
a. Photo array or line-up of criminals are not hearsay (person picks them out
from album or line-up)
b. If officer is telling story of declarant-witness, can’t be brought it, you need
witness that is subject to cross-examination
FRE 801 (d) (2) – Opposing Party’s Statements
1)
“Anything can be used against you in a court of law”
400, 375
Is there an exception?
FRE 803 - Declarant unavailability to testify is irrelevant
1)
2)
3)
4)
5)
6)
Present Sense Impression
a. Generally admissible - Out of court statement, Declarant is describing events immediately
after or as they happen.
i. Example – someone calls 911 for witnessing a crime
Excited Utterance
a. Generally admissible - Out of court statement, Declarant makes statement out of stress or
excitement after suffering startling event.
i. Example – gunshot, person hears this and is stressed and starts yelling things
Then-Existing state of mind
a. Generally admissible - Out of court statement, Declarant describing what they are
currently experiencing as far as physical, mental, or emotional conditions to prove state of
mind at the time.
i. Example – person describing what they’re feeling as they’re feeling it. Someone
on the ground, rolling around, describing it to someone else. Not describing it a
week later
Medical diagnosis/treatment
a. Generally admissible - Out of court statement, Declarant makes statement for purpose of
medical diagnosis or treatment. Does not have to be doctor
i. Example – person goes to doctor and describes symptoms for treatment and
prescription.
Recorded recollection
a. Generally admissible - Out of court statement, Declarant at court testifying and having
trouble recalling details – and same witness has made out of court record/statement, we
allow that record to be read as evidence as long as its same person and immediately after
event and from their own knowledge.
i. Example – person out of court, made a statement, and is reading/recollecting it in
court.
Business records
a. Generally admissible - Out of court statement, Declarant makes statement or provides
record about event’s occurrence.
i. Example – secretary keeping a call or visitor log at or near occurrence of event
FRE 804 - Declarant unavailability (refusal, no show, unable to recall, etc.) to testify is required
1)
2)
3)
4)
Former Testimony
a. Declarant unavailable AND generally admissible – former testimony made in one court
room and you want to apply to next. Have the facts of the case changed?
i. Example –first trial to second trial, testimony wants to be used but witness is not
available, you can bring it in. If facts change, unable to use
Dying Declaration
a. Declarant unavailable AND generally admissible – only applies to civil and homicide
cases. Out of court statement, where witness believes their death is imminent and
statement relates to circumstances of their death
i. Example – person dying and writes killer’s name in their own blood
Statement against interest
a. Declarant unavailable AND generally admissible – person makes statement against their
own self-interest where reasonable person would not have made, unless they believe it to
be true.
i. Example – by making this statement, you’re exposing yourself to liability
Forfeiture by wrong-doing
a. Declarant unavailable AND generally admissible – witness is made unavailable by
opposing party and can be proven. Opposing party forfeits right to object
i. Example – Witness tampering
400, 375
Confrontation Clause - 6th amendment
In all criminal prosecutions, accused shall have the right to be at their own trial has Constitutional right to
cross-examine witness against him
The use of an out-of-court statement (even if it falls under a valid hearsay exception or testimonial
privilege) violates defendant’s constitutional rights under the confrontation clause if:
1) Proceeding is a criminal action
a. Not civil
2) Declarant is unavailable to be cross-examined at trial
a. See above
3) Defendant did not have opportunity to cross-examine the declarant at a proceeding prior to trial;
AND
a. Was available before and defendant could be cross-examined, then inapplicable.
4) Statement is testimonial
a. Testimonial – if declarant would reasonably expect that the statement would be used for
prosecution purposes
i. Example – most out of court statements are not made for purpose of prosecution
ii. Are statements made to police testimonial?
1. Yes, if statement made to police whose primary purpose is to collect evidence to
be used in future criminal prosecution is testimonial
a. Example – going to police station to give testimony on robbery hours
prior is testimonial. PAST TENSE
2. No, if statement made to police whose primary purpose is to provide assistance
in ongoing emergency is not testimonial
a. Example – “help me, my purse was just stolen, mugger ran that way”
PRESENT TENSE