HEARSAY – oral or written statement or assertive conduct, which was made or occurred out of court
and is offered to prove the truth of the matter asserted
- Exclusion protects from: (1) ambiguity, (2) insincerity, (3) incorrect memory; (4) inaccurate
perception
EXCEPTIONS
1. ADMISSIONS – a party’s own words or acts offered against him; “anything you say can be used
against you.” *Unlike declarations against interest, admission need not be against declarant’s
interest at the time it’s made
Rationale: no special guarantee of trustworthiness; stems from adversary theory of litigation, a
party can hardly object of no chance to cross himself or that he is non-credible not under oath.
a. Personal - usually pleadings
b. Adoptive – test – whether, taking into account all circumstances, the conduct or silence
justifies the conclusion that he knowingly agreed with the spoken statement
c. Co-Conspirator – (1) must be a member of the same conspiracy, (2) it must have been
made while the conspiracy was still in force; and (3) it must have been made in order to
further the aims of the conspiracy
Rationale: conspirators will rarely give testimony implicating each other at trial, each
will have 5A right against self-incrimination (necessary) and active conspirators are
likely to know who the members are and what they have done (reliable)
2. DECLARANT’S AVAILABILITY IMMATERIAL
a. Excited utterance: (1) statement must relate to startling event and (2) must be made
under the stress of excitement
Rationale: event is so startling that the declarant’s reflective capacity is eliminated,
declaration is unlikely to be motivated by self-interest or otherwise insincere
b. Statements about physical/mental condition – not memory/belief
c. Present sense impression: (1) immediacy and (2) must describe/explain
** Declarant doesn’t need to be excited
d. Past recollection recorded: (1) sponsoring witness must have once had first hand
knowledge, (2) made fresh in W’s memory, (3) sponsoring W’s memory of even must
now be impaired, and (4) sponsoring witness must testify at trial that the record was
accurate when made.
**Not allowed as substantive evidence
*Not required that record maker be present, just that sponsoring with approved and
adopted record once made as an accurate reflection of his knowledge
e. Business records: (1) routine business practice; (2) must be made by or from
information, from person with personal knowledge, and (3) entries must have been made
at or near time of recorded matter
Rationale: an employee who has knowledge of business operations and matter in
question and a duty to follow business routine, is likely to produce a reliable record
f. Public records: (1) if official had first-hand knowledge of facts reported and (2) official
had a duty to make the record or report
Rationale: an official who has knowledge of the facts and a duty to report them is likely
to produce a reliable record
3. UNAVAILABILITY REQUIRED
a. Former testimony – prior trial, preliminary hearing, grand jury investigation, *key
requirements: (1) reasonable and similar opportunity for cross and (2) statement made
under oath, & (3) identity of parties, as it pertains to opponent of statement
Rationale: single most important factor making testimony reliable is that the adverse
party cross-examined or had the opportunity to cross the witness on the prior occasion
b. Dying declaration – (1) declarant must believe his death is imminent, (2) statement must
concern the cause or circumstances of his impending death, and (3) declarant must be
unavailable, then it’s admissible in subsequent homicide prosecution concerning that
death
Rationale: belief that dying declarant knowing that he is about to die, would be unwilling
to go to his maker with a lie lips.
c. Statement against interest: (1) statement must be against declarant’s pecuniary or
proprietary interest when made, (2) declarant must be unavailable, and (3) declarant must
have first-hand knowledge of facts asserted
**If statement is against opposing party use admission, less stringent requirements
i. At CL, statements against the declarant’s penal interest – statements exposing him
to criminal liability – do not fall within the declaration against interest exception
(fear of false evidence)
1. Declarations against penal interest are used either by D to exculpate
himself with another’s admission or by the prosecution to inculpate D with
another’s confession that implicates D
ii. Federal and modern courts usually broaden it to allow statements against penal
interest
iii. FREs steer a middle ground and say a statement tending to expose declarant to
criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement
1. For corroborating circumstances some factors the courts look to include:
motive to lie, general character of declarant, persons hearing statements,
spontaneity of statement, timing of declaration and relationship between
declarant and witness, & external connections – other evidence linking
declarant to the crime
2. FREs don’t explicitly require corroboration when statement is used to
inculpate, but nonetheless a number of courts impose such a requirement
iv. Collateral statements – where statement includes a part that is clearly against the
declarant’s interest and another part is either neutral or self-serving, Williamson
Court ruled these collateral statements are not admissible.
d. Forfeiture by wrongdoing – to discourage witness interference, no requirement for outof-court declaration to be reliable
4. PRIOR STATEMENTS BY AVAILABLE WITNESS
a. Inconsistent statements – allowed substantive use of a previous statement made under
oath at a proceeding or in a deposition
b. Prior consistent statement – allowed to rebut a charge that the witness has recently
fabricated his story or has been improperly influenced or motivated
c. Identification – need not be made under oath; admissible even if consistent with current
testimony with no need to be a rebuttal to a charge made on cross
5. RESIDUAL EXCEPTION – if a particular item of hearsay evidence has circumstantial guarantees of
trustworthiness, that item of evidence should be admitted whether or not it meets the
requirements of an established hearsay exception.