CVLS Hearsay Refresher
• Who Cares About
Hearsay?
• A Four-Step Hearsay
Formula
• Hearsay Exceptions
• Questions
Hearsay: Why We Care
Hearsay raises concerns about
reliability.
Is the witness’s testimony
reliable enough to be
admitted as evidence?
Hearsay: Why We Care
• Perception
• Memory
• Narration
• Sincerity
Hearsay: Why We Care
• Oath
• Observation
• Cross-Examination
Defining Hearsay: A Four-Step Formula
• A declarant’s
• Out-of-court
• Statement
• Offered at trial to prove the
truth of the matter asserted.
Defining Hearsay: A Four-Step Formula
• A declarant’s
• Out-of-court
• Statement
• Offered at trial to prove the
truth of the matter asserted.
Defining Hearsay: A Four-Step Formula
The declarant is the person who
made the statement.
Out-of-court means that the
declarant did not make the
statement while testifying at
the current trial or hearing.
FRE 801(a)-(c): Defining Hearsay
• A declarant’s
• Out-of-court
• Statement
• Offered at trial to prove the
truth of the matter asserted.
FRE 801(a): What is a statement?
• An oral assertion
• A written assertion
What About Non-Verbal Conduct?
Non-verbal conduct may
be hearsay if it is intended
as an assertion and offered
for the truth of the matter
asserted.
FRE 801: Defining Hearsay
• A declarant’s
• Out-of-court
• Statement
• Offered at trial to prove the
truth of the matter asserted.
Why the “Truth” Matters
An out-of-court statement
offered to prove that what a
declarant said is true is
inadmissible [if no exception
applies] as there is no way to
verify it for accuracy.
The declarant is not at trial,
under oath, observable by a jury,
or subject to cross.
Non-TOMA = Non-Hearsay
If counsel can convince the court
that the out-of-court statement
is offered for a reason OTHER
than its truth, the statement is
admissible as non-hearsay.
What are some other reasons?
Non-TOMA: Common Examples
OOCS offered to prove the effect
or impact on the listener.
OOCS offered to show a legal
obligation (“verbal or legal act”).
Legal Acts. . .
Transactions:
• As we sat with the realtor,
James said, “I accept the
seller’s offer.”
• Then Bob said to the estate
planner, “I will leave my
summer cottage to my third
wife, Irma.”
Non-Hearsay: Effect on the Listener
Statements offered for EOTL
do not depend on the truth
of the assertion.
What matters is simply that
the words were spoken and
the listener heard them.
Non-Hearsay: Effect on the Listener
The key in effect-on-listener is
not the P-M-N-S of the out-ofcourt speaker but what the
out-of-court listener heard.
It is critical to examine why the
evidence is being offered.
A Place In the Sun
A bus driver testifies about a
conversation he heard
between a man and a murder
victim, during which she
demanded that he marry her.
Is this testimony based on
impermissible hearsay? How
might you argue for its
admission at trial?
Effect on the Listener
The statement, whether true
or not, is relevant to show
that the alleged killer had a
motive to murder the victim.
Mundy’s First Trial
A DEA task force agent
testifies, “I got a call from my
informant. He told me that
[defendant] was selling drugs
from his mother’s home. We
then began conducting visual
surveillance of the home.”
Mundy objects! Hearsay?
Mundy’s First Trial
The evidence was offered not
for the TOMA – but to explain
why the task force began to
watch the home, a fact that did
not depend on the tip’s truth.
The court provided a limiting
instruction that the tip should
only be used to show why the
officers went to the home.
“Not Hearsay” = Exceptions
Prior statements by witnesses
would “fall within the definition
of hearsay” but are “excluded”
from it.
Treat these statements as
exceptions to the four hearsay
components.
FRE 801(d)(2): Statement of Party-Opponent
A statement is not hearsay if it is
offered against an opposing party and:
(A)
Was made by the party in an
individual or representative
capacity [or]
FRE 801(d)(2)(A): Statement of P-O
A party’s own words are not
hearsay when offered against
her at trial.
FRE 801(d)(2): Statement of Party-Opponent
Agents:
(D)
Was made by the party’s agent
or employee on a matter within
the scope of that relationship and
while it existed [or]
FRE 801(d)(2): Statement of Party-Opponent
Co-conspirators:
(E)
Was made by the party’s coconspirator during and in
furtherance of the conspiracy.
FRE 801(d)(1)(A): Prior Inconsistent Statement
Declarant testifies and is
subject to cross-examination
about a prior statement
The statement is inconsistent
with the declarant’s testimony
The statement was given
under penalty of perjury at a
trial, hearing, or other
proceeding or at a deposition.
FRE 801(d)(1)(A): Prior Inconsistent Statement
To be admissible, the prior
statement need not have been
subject to cross-examination
at the time that it was made -just at the time it is offered.
Example: Domestic Assault
• Alleged victim testifies in
front of a grand jury that her
boyfriend hit her in the eye.
• At trial, she then testifies
that it was an “accident.”
• The prosecutor then moves
to admit the her grand jury
testimony. In? If so, how?
FRE 803: Declarant Unavailability Immaterial
FRE 803 is based upon “the
theory that [certain]
hearsay statement[s] may
possess . . . guarantees of
trustworthiness sufficient to
justify non-production of
the declarant even though
he may be available.”
FRE 803(1): Present Sense Impression
• A statement
• Describing or explaining
an event or condition
• Made while or
immediately after the
declarant perceived it.
FRE 803(2): Excited Utterance
• A statement
• Relating to a startling
event or condition
• Made while the declarant
was under the stress of
the excitement that [the
event] caused.
803(1) vs. 803(2)
Questions?