EVIDENCE OUTLINE

 

I. THE HEARSAY RULE OF EXCLUSION  (rule 802 provides that hearsay is not admissible except as provided by these rules)

A.  801a-c:  Definitions of Hearsay-anything that is oral and out of court is generally hearsay if the declarant is not on the stand available for cross, it is not trust worthy and this is why we have rules against allowing such evidence in.  Concerns revolve around our inability to probe the declarant’s perception, memory, sincerity and narration.

1.  801 a:  Statement:  a statement is 1. an oral or written assertion OR 2.  non-verbal conduct of a person, if it is intended by the person as an assertion.

a.  A substitute for speech, or written word that is intended by the person as an assertion.

Ex:  Giving someone the bird is a nonverbal conduct that is intended. 

Ex:  Pointing out someone in a line-up is non-verbal

b.      Conduct, is problematic.  The critical distinction under the FRE is between assertive and non-assertive conduct.

c.       Non-assertive conduct:  (implied assertions): 

a.       Wright v. Tatham:  A beneficiary offered letters to prove competency of testator.  The letters that merely discussed every day affairs.  If the letters had called him a “competent testator” they would have been hearsay.  (all the letter writers were dead at the time of trial)  The letters indicated the writers believed he was mentally competent.  The court held this was hearsay, but the federal rules feel differently. 

b.      Federal Rules View:  advisory committee is of the view that these dangers of narration, sincerity, etc. are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds.

                                                                                                   i.      If a person does not intend to make an assertion, insincerity issues are significantly reduced or eliminated. 

2.      801 b:  Declarant:  is a person who makes a statement.  (remember Peter’s statement to Jill, he is the declarant, she is the witness who gives the statement.  Also remember that Peter can be the declarant and the witness)  One person is making a statement to someone else, and that someone else repeats the statement in court.

a.       This definition makes clear that the hearsay rule does not apply to devices such as radar, or to tracking dogs.

3.      801 c:  Hearsay:  a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

a.       Look to where the statement is made.  If made in court, then the statement is probably not hearsay, if made outside of court and repeated then probably a candidate for hearsay.

                                                                           i.      Out of court:  other than one made by the declarant while testifying at the trial or hearing.

b.      Why the statement was offered:  Truth of the matter asserted:  have to look at why the statement was made!  If it was made to prove the truth of the matter asserted, then it is hearsay and generally not admissible.  A non hearsay offering never cares about the truth of the statement.

                                                                           i.      If the relevance is just to show the statement was made rather than the truth of the assertion contained in the statement, the statement is not hearsay.

                                                                         ii.      If the statement is offered for any other purpose than its truth, it is not hearsay.  SO, we have to know why the statement is being offered, its relevancy.  (it is the offering party that decides this) (AND rule 401, and 403 may keep it out too!).

Ex:  if statement “I am very rich” used to prove rich, then hearsay, to prove he is a jerk, this is going away from the truth and is not hearsay.

Ex:  Statement:  “I am the Pope” made by John Doe oral statement out of court.  Offering is that you are going to show Doe uttered it and the statement was false.  We are not offering to show that he is the pope.  Not hearsay.  If offering to show he is the pope, then it is hearsay and is inadmissible.

*General Rule:  If trying to prove what he said was false then it is not hearsay.  A non hearsay offering does not care about the truth of the statement.

Ex:  Statement:  “I want to cancel my policy”  if offered to show the policy was canceled, or that he uttered the statement, then not hearsay, BUT if offered to show the declarant wanted the policy canceled, then hearsay.  The first is not because we are not showing his intention to cancel.

*General Rule:  if only offered to show it was uttered, then not hearsay.

c.  A witness can also be the declarant.  If a witness is testifying as to what he saw, for example in Leake the son testified to seeing the light out this is not hearsay, because he is not testifying as to the truth of something said outside of court.  However, if the son was testifying to what he told the adjuster outside of court (“I told Gross…..), this is hearsay because it is offered to prove the truth of his statement to the adjuster. 

i.  It is important to note that the witness can repeat an out of court statement and have it be hearsay no matter who said it….even if the witness himself said it.

d.  Policy reasons for not allowing hearsay, (what we would want to grill our witness over)

            i.  Perceptions

            ii.          Memory

iii.                  Sincerity

iv.                 Narration, the communications between these people (ex:  they speak two different languages, or maybe it was a joke)

e.       Hearsay that is so good we want to let in.  Under certain circumstances we will let the evidence in (about 30 exceptions)

i.                     803 and 804 are exceptions:  (see below for the exceptions)

ii.                   807:  says if you have great hearsay and it is extremely relevant and trustworthy, the trial judge has discretion to let it in. 

f.        Statements that have legal significance:  a category where the law attaches rights or obligations to those statements.  It does not matter whether or not you wanted it, you said it.

a.       Ex:  offer and acceptance.  The insurance policy example again.  Contracts, defamatory statements, slander, etc.

b.      If the statement relates to the substantive law of the case.

                                                                                                   i.      Ex:  Adverse possession, a statement offered to show the element open and notorious which is an element of adverse possession.  NOT hearsay.

                                                                                                 ii.      Ex:  (Verbal part of an act)  Transfer of a gift, AND the donor says I give you this gift.  This is a transfer with a statement of present intent.  Substantive law requires both elements to be present.  It is not hearsay, it has legal significance.  Verbal part of the act has to be at the same time as the gift.  If not, then it is hearsay.

                                                                                                iii.      Self Defense

                                                                                               iv.      Notice

c.       Greetings are NOT hearsay.

                                                                                                   i.      “good morning class”, not hearsay

d.      Animals and inanimate objects like a clock are not hearsay.  You cannot cross examine them, so no problem with memory, sincerity or perception.

e.       To show effect on listener:  a person’s state of mind:  knowledge, belief, good faith, reasonableness is sometimes an issue.  A statement offered to show its effect on the state of mind of the person who heard it is not hearsay.

f.        Statements of victim:  if self defense is offered, her reasonable fear of the victim is an issue and statements made to her regarding the victim’s dangerous or violent character are relevant to show her subjective fear as well as the reasonableness of this fear.

g.      Implied beliefs

a.      Common Law-statements offered for their implied beliefs are hearsay.  (different from federal)

b.      Federal Rules- statements offered for their implied beliefs are not hearsay.

                                                                                                  i.      Advisory Notes:  the key to the definition is that nothing is an assertion unless intended to be one.  The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion.

c.       Loetsch:  statement offered by the declarant to show the declarant’s state of mind.  (not by a third party)

                                                                                                   i.      Federal Rules will not exclude.  Offered to show pecuniary loss to her, so not offered to show how she felt.

                                                                                                 ii.      If evidence is offered to impeach a witness it is generally not hearsay.  You are showing this person does not need to be believed.  Impeaching is only offered to show the statement was made, not prove it.

h.       Verbal Acts:  statements that constitute verbal acts or operative acts are not hearsay because they are not offered for the truth.

a.       The uttering of certain words has independent legal significance under the substantive law.

b.      Ex:  words of a contract, slander, threats.

c.       We only care if these words are said, not if they are true.

i.        Verbal Parts of Acts

a.       statements offered in evidence only to show that the statements were made and to explain an otherwise ambiguous act.

b.      Words of donative intent accompanying the transfer of something.  (because donative intent is an element of a gift)

j.        Exemptions: 

a.      801d1A:  Prior Inconsistent Statements:  A statement is NOT hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjurty at a trial, hearing, or other proceeding, or in a deposition.

                                                                                                  i.      Really offered to show the statement was inconsistent, not the truth of the matter asserted.

                                                                                                ii.      You might then want to invoke a rule 105 limiting instruction

b.      801d1b:  consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

                                                                                                  i.      Normally is hearsay, however this is an exception.  It is showing the truth of the matter asserted, however here we are rebutting a lie or something different.

c.       801d1c:  ….one of identification of a person made after perceiving the person

                                                                                                  i.      No other way to show you identified that person outside of court.

1.      Ex:  A murder, then a line-up:  declarant says Danny committed the murder, trial comes same witness is on trial.  An in court identification.

d.      801d2:  Admission by a party opponent:  contains five circumstances under which we can have a party admission.  Must be against the party.  D against P, or P against D.  You cannot say your own statement.

                                                                                                   i.      801d2A:  the party’s own statement, in either an individual or a representative capacity

1.      Either statement against a party opponent, OR

2.      A statement by someone who represents you, a trustee, make statements on behalf of a beneficiary

a.       Judicial admissions: current pleadings not superceded, lawyer drafts a pleading this is a party admission and is admissible in court.  Is not hearsay.

b.      Evidenciary admissions:  Amended pleadings:  admission on behalf of client.  Is not hearsay.  But can be contested

c.       Request for admissions:  Ask D to answer to certain things that will not be contested in court.  These answers are judicial admissions and cannot be contested.

d.      Written Interrogatories:  a legal device to find out facts.  (Not admissions or denials).  Answers are a party admission and they are evidenciary.  Can contest answers.  Not hearsay.

ii.  801d2B:  a statement of which the party has manifested an adoption or belief in its truth

1.      ex:  murder, D flees to Brazil, he is caught and brought back.  His flight from the crime is an admission of guilt by conduct.

2.      BUT silence is not always evidence of a party admission.  Must look at two elements:

a.       Totality of the circumstances

b.      Was the statement made under such circumstances and by such persons that it would naturally call for a reply.

                                                                                                ii.      801d2C:  a statement by a person authorized by the party to make a statement concerning the subject

1.      Only business type that was recognized by the common law.

                                                                                              iii.      801d2D:  a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

1.      Restatement limits statements.  Cannot be made from agent to agent or agent to principal.  Can be made to the public at large.

2.      Must also be within the scope of his duty.  Cannot be after the employment is terminated.  The federal rules do not mention the last one, but it was within the case:  shown to have an animus against principal.

3.      When a statement is offered to show notice, not hearsay.

                                                                                               iv.      801d2E:  a statement by a coconspirator of a party during the course AND in furtherance of the conspiracy.  The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision C, the agency or employment relationship and scope thereof under subdivision D, or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision E. 

1.      Elements: 

a.       Conspiracy

b.      Declarant

c.       Defendant and declarant who are part of that conspiracy

d.      In the course and furtherance of the conspiracy

2.      Generally, a judge can consider a what would be hearsay statement of a coconspirator before trial to offer evidence of a conspiracy regardless of whether that statement was hearsay.  Can be considered because of Rule 104.

a.       Policy:  a judge knows how to evaluate evidence without misconstruing it. 

b.      BUT even though it can be considered, it cannot be the sole support to prove the predicate crime.

k.      EXCEPTIONS TO HEARSAY

1.RULE 803:  Hearsay exceptions; Availability of Declarant Immaterial.  (does NOT matter if the declarant is available, apply whether or not the declarant is available)

a.  803(1).  Present Sense Impressions:  a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

i.  Differences between an excited utterance:  here there is not an exciting triggering event.  It is just an observation.

ii.  Spontaneous comment regarding the declarant’s experience made at or immediately after.

iii.  Is there time between the declarant’s statement and the observation?  (a couple of minutes is the standard.)

iv.  What if she was on the phone with her daughter?  Yes this is okay

b.  803(2):  Excited Utterance:  A statement relating to a startling event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

i.  Court sets the time between event and statement at around 45 minutes.

ii.  Reason we allow excited utterances are:  they are less likely to be manufactured.  An emotional reaction. 

iii.                  We have to consider:

                                                                                                                           i.      His emotional state

                                                                                                                         ii.      Was he a participant or a bystander

                                                                                                                        iii.      Where statement was made and to whom

                                                                                                                       iv.      Degree of startling event.

                                                                                                                         v.      Did the declarant have a motive to falsify?

                                                                                                                       vi.      Blurted is better, ore likely if upset

iv.                 Can you rekindle the passion?  YES!

c.  803(3):  Then existing mental, emotional, or physical condition (Hillside v. Pheaster)  A statement of thedeclarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memorty or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. 

            a.  Must be a present state of mind:

Ex:  “I have a headache” is part of the exception, because you have to condition as you are speaking about it..  BUT “I had a headache yesterday” is NOT because it is past. 

b.  Must also show intent:  a current statement of present intent to do the act in the future. 

c.  Cannot use a declarant’s statement to prove the intent or actions of a 3rd party.

Ex:  Hillman case.  Cannot use to show 3rd party would meet him in the parking lot.

e.       The Alcalde Rules:  say you have to have 3 other arguments present before this hearsay will be excepted under 803.  

                                                                                                                           i.      Court limits this to the dead or unavailable declarants.

                                                                                                                         ii.      Relevant and a high degree of trustworthiness.

                                                                                                                        iii.      Other evidence present from which guilt can be inferred.

d.  803(4):  Statement for purposes of medical diagnosis or treatment:  statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

1.  Iron Shell:  focuses inquiry to an attempt to diagnose.  Does it matter who the person was who raped her?  NO not here, BUT is there a situation, maybe disease…but not likely.

2.  Has been extended to social workers, nurses, EMT

ex of extension:  social worker goes to a home, removes the child from the home, AND you have to know the name of the person doing the abusing.

3.  ONLY works if the patient makes the statement.  The declarant has to be the patient.

a.  ex:  from treating doc to follow up doc no good!  Because the treating doc is the declarant.

e.      Record recollection:  A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.  If admitted, the memorandum or record may to read into evidence buy may not itself be received as an echibit unless offered by an adverse party.

1.      2 ways to attack a witness that does not remember

                                                                                                                           i.      Try to refresh witness’s memory, (jog the memory) OR

                                                                                                                         ii.      Try to get it in under recorded recollection.

1.      memorandum or record

2.      witness observed personally (cannot repeat what someone else said)

3.      NOW has insufficient recollection

a.       Common law said there must be zero memory.

b.      Federal Rules:  “I remember something, but not much.”

4.      Made or adopted by the witness

a.       Have someone else and sign it

b.      Adopt someone else’s by signing it.

c.       Author does not have to be the witness.

d.      6 month time period between observation and statement given was OK.  (Krump says this is reaching.

5.      If admitted, may be read into evidence, BUT must be offered by an adverse party.  BECAUSE the jury will look at a writing and assume an improper importance.  (comes in as read to the jury).

2.      Hodas v. Davis:  prove by habit, course of business, check marks, anything that shows a habitual way of dealing with documents.

f.        803(6)  Business records:  (a business is any calling for profit)

1.      Why?

                                                                                                                          i.      Because basis for running a business and is trustworthy.  AND

                                                                                                                        ii.      Because you have a lot of people reporting information, business records are necessary.

2.      4 types of people: 

                                                                                                                           i.      Supplier:  the person who must have personal knowledge of information going into the record.

                                                                                                                         ii.      Entrant:  they enter the data.  Takes record from supplier to make it a business record.

                                                                                                                        iii.      Custodian:  records kept in his personal control.  Knows how kept and how disposed of.

1.      Does not need personal knowledge.

                                                                                                                       iv.      Witness:  alternative to custodian.  Any witness who has enough information to lay the predicate.

3.      We do let in computer records, Dr. Records that contain opinions.