This is an extract of our All About Hearsay document, which we sell as part of our Evidence Outlines collection written by the top tier of St. Thomas University College Of Law students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
"Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement
Statements NOT offered for their truth:
1) To prove knowledge (or other relevant state of mind) of the speaker 2) Statement offered to prove notice to the listener/hearer 3) Statements offered to prove the effect on the listener/hearer (ex: statement induces motive in the listener)
4) Statements that have independent legal significance 5) Publication in a libel case 6) Prior inconsistent statements offered to impeach
Definitions 801(a) -
"Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion
Definitions 801(b)- Declarant
"Declarant" means the person who made the statement
Definitions 801(d)(1) (A-C)
Statements that are not Hearsay
d) Statements which are not hearsay. —A
statement is not hearsay if—the declarant testifies and is subject to cross-examination about prior statement, and the statement:
(1) Prior statement by witness. —Declarant testifies at trial or hearing and is subject to cross concerning the statement, and the statement is
(A) Inconsistent with declarant's testimony given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or
(B) Consistent with declarant's testimony
(need not be under oath) and offered to rebut an express or implied charge against the declarant of recent fabrication,
improper influence or motive; or
Declarant + assertion
Human + intentional communication
Nonverbal conduct is not an assertion unless that person intended it to be an assertion
Almost always contains statements: emails;
audiotapes; webpages with words; faxes
Machine generated communications: fully automatic processes → not statement
(thermometer, clock, motion detector, alarm)
PREREQUISITES FOR NONHEARSAY:
1. witness who testify = declarant
2. the statement at issue is a statement that the witness made at some point in time before taking the witness stand
3. the witness can be cross examined about that prior statement
Prior Inconsistent Statement by DeclarantWitness ELEMENTS:
1) Declarants testifies at trial 2) Declarant/witness is subject to cross 3) Prior statement is inconsistent with courtroom testimony 4) Prior statement given under penalty of perjury 5) Prior statement given during a trial, hearing,
or other proceeding (C) One of Identification of a person after perceiving the person.
Note: 801(d)(1)(A) → if requirements are met,
can be used for impeachment and substantive evidence.
Prior Consistent Statement by DeclarantWitness ELEMENTS:
1) Declarant testifies at trial 2) Declarant/witness is subject to cross 3) Prior statement is consistent with courtroom testimony 4) Witness's credibility has been attacked 5) Statement probative for rehabilitation
Prior Statement of Identification of a Witness
1) Declarant testifies at trial 2) Declarant/witness is subject to cross 3) Prior statement was identification of a person
Definition 801(d)(2) - An
(d) Statements which are not hearsay. —A
statement is not hearsay if—
(2) Admission by party-opponent. —The statement is offered against a party and:
(A) Was made by the party in an individual or representative capacity;
(B) Is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E)
Note: neither government agents nor victims count as "party opponents"
(A) was made by the party in an individual or representative capacity
• Applies to any out-of-court statement by a party, offered against that party
• Statement does not have to be "against interest"
• Party's availability is immaterial
• Personal knowledge not required
• Can be an opinion
• Limits: 1. Declarant must be a party
- NOT victim in criminal prosecution
- they have to be specifically named as a party
2. Statement must be offered against the party/declarant
(B) Is one the party manifested that it adopted or believed to be true
• Adoption by Silence
• Foundation - Proponent must show:
o The party heard the statement.
o Matter asserted was within his knowledge.
o The occasion and nature of the statement were such that he would likely have replied if he did not accept what was said.
o Failed to respond, or responded but did not rebut the accusation.
(C) was made by a person whom the party authorized to make a statement on the subject The statement must be considered but does not by itself establish the declarant's authority
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed
The statement must be considered but does not by itself establish… the existence or scope of the relationship
Coconspirator Statements ELEMENTS:
1. Statement was made by a party's coconspirator;
2. during the existence of the conspiracy; and
3. in furtherance of the conspiracy
The Rule Against
Hearsay is not admissible unless any of the following provides otherwise:
o A federal statute;
o These rules; or
Other rules prescribed by the Supreme Court
The following are not excluded by the rule against • Declarant does NOT have to be unavailable hearsay, regardless of whether the declarant is
• Declarant can be available, but the proponent available as a witness:
does not have to call declarant to testify
• Declarant must have firsthand knowledge
A statement describing or explaining an event or
condition, made while or immediately after the
Description of event or condition
Made while or immediately after declarant perceived it.
o Accuracy: declarant wasn't relying on memory
Sincerity: its hard to lie quickly
Utility: declarant may be unavailable or the contemporaneous statement may have particular meaning.
PSI example → baseball sports caster
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
o Accuracy: declarant wasn't relying on memory
Sincerity: it's hard to lie when excited
Utility: Declarant may be unavailable OR
the excited utterance may have particular meaning
Note: look for !!!!
803(3) - ThenExisting Mental,
A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not
Note: must be contemporaneous to the feeling
State of mind exception:
1. Statement of present ("then-existing") state of mind or bodily condition, offered to prove a state of
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