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Hearsay Outline

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Hearsay

a. Definition i.

ii. iii.

iv. v.

vi. vii.

801(c) "Hearsay" means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and [OCS]
(2) a party offers in evidence to prove the truth of the matter asserted in the statement. [TOMA]
Declarant: The person who made the statement. FRE 801(b). a. If you repeat yourself, it could be out of court statement. b. Witness: I told Mary that the light was red ? "I" is the declarant. Statement: An oral or written assertion or non-verbal conduct intended to be an assertion. FRE 801(a). a. Must be assertion: position one takes that something is true. Intended as positive information transfer. i. What's not an assertion: questions, directives (mind your own business), reflexive verbal behaviors (ouch), reflexive conduct. ii. Silence: Generally would not be a statement unless a reasonable person would be expected to respond. Most often in response to an accusatory question or statement. iii. Self-quoting: is OCS and can be hearsay b. Paraphrase OK: Doesn't matter if a quote or paraphrase, both are just as much hearsay. c. Conduct: is the conduct trying to convey a message? i.e. a statement. d. Form: Can be in words, writings, or actions Truth of the Matter Asserted: Offered to prove the truth of what the words say. a. Evidence of what the speaker said about past event: Not TOMA b. Evidence of what the speaker believed about a past event: Maybe TOMA. Is what's really going on showing that the person believed it and therefore had a justifiable self-defense claim or for showing that the other person was the first attacker. c. Evidence of the Past Event: Yes TOMA When is a statement hearsay? 4 step analysis a. Was there a statement or conduct with an assertion?
b. Was the statement made out of court?
c. Is it being offered in court for TOMA?
d. Is it other than a Rule 801(d) exclusion?
i. If the answer to all 4 is "Yes," it is hearsay and excluded---
unless it falls within a recognized exception. Rule 802 Hearsay is not admissible unless any of the following provides otherwise: a. a federal statute; b. these rules; or c. other rules prescribed by the Supreme Court When is a statement not hearsay?
a. A statement is not hearsay when it is offered for any purpose other than for its truth

viii.

ix. x.

xi. xii.

xiii. xiv.

b. Examples: i. Just to show that the words were said, not to prove that they were true ii. Impeachment [is this on cross? Can you use extrinsic evidence here?- refer to impeachment question]
iii. Legal significance/ verbal acts

1. Giving perjured testimony

2. Robbery "I have a gun, give me your money"

3. Offering to sell contraband

4. Demanding ransom

5. Blackmail

6. Defamation

7. Firing someone

8. Offer/acceptance in contract iv. Effect on listener or reader

1. Out of court statement used to show why a listener acted in a certain way; motive

2. That motive must be relevant

3. warnings v. Circumstantial evidence of state of mind/ belief

1. The statement is used not to prove the truth of its contents, but to provide the finder of fact with a basis for drawing an inference concerning a person's state of mind

127. Prosecution seeks to admit Quinn Washington's testimony that Leslie Mitchell appeared "frightened and nervous." Defense objects that the "nonverbal conduct" of Leslie is hearsay. Respond for the prosecution. Reply for the defense. [Mitchell, 44]
a. Merely an observation, not a statement (no assertion)

128. Prosecution seeks to admit Slyviak's testimony that Joe was walking furtively toward the station house back door. Defense objects on hearsay grounds to the "nonverbal conduct" described. Respond for the prosecution. Reply for the defense. [Mitchell, 20]

129. Jesse seeks to testify that Emerson rolled her eyes after Mrs. Easterfield asked Jesse to go look for the brooch. Defense objects on hearsay grounds. Respond for the plaintiff. Reply for the defense.
[MacIntyre, 107]

130. Reverend Taylor seeks to testify that Mr. Easterfield never complained about Jesse's demeanor or work. Defense objects on hearsay grounds. Respond for the plaintiff. Reply for the defense. [MacIntyre]

131. Defense in MacIntyre calls Holman who testifies that he told Jesse in advance about his plans to rob the gas station. After testifying, he returns to San Diego. In rebuttal, plaintiff offers Holman's statement in the transcript of Jesse's plea. For the defense make and argue any objection(s). For the plaintiff respond. [MacIntyre, 181-83]

132. Easterfield is testifying. He is describing the events of July 17 and says "I told her she could stay . . . ." Plaintiff objects and moves to strike as hearsay. Defense to respond. Plaintiff to reply. [MacIntyre, 122]
a. Not TOMA, just circumstantial evidence that Mr. E wasn't angry.

133. Easterfield then testifies that Jesse responded "No!" to his invitation for her to stay. Plaintiff objects and moves to strike on hearsay grounds.

xv.

xvi. xvii.

xviii. xix.

xx. xxi.

xxii. xxiii.

Respond for the defense. Reply for the plaintiff. [MacIntyre, 122]

134. Marlow testifies for the defense. On cross-examination, plaintiff asks if he has heard the "rumor" that about the firing of the previous executive director. Defendant objects on hearsay grounds. Respond for the plaintiff. Reply for the defendant. [MacIntyre, 163]
a. It's a statement. b. Not TOMA, but to prove bias,

135. Jesse MacIntyre testifies that Marlow told her that she "is exceptionally well qualified for the job." Defense objects and moves to strike on hearsay grounds. Plaintiff to respond. Defendant to reply.
[MacIntyre, 111]

136. And, just for laughs. Kelly Emerson is asked to state her name for the court and the jury. Plaintiff objects on hearsay grounds and offers to conduct voir dire of the witness to show that she is relying on hearsay from her mother. Respond for the defense. [MacIntyre]

137. Plaintiff in MacIntyre offers an edition of the Nita City Tribune containing the ad placed by the Nita Athletic Club. Defendant objects on hearsay grounds. For the plaintiff, respond. For the defendant, reply.
[MacIntyre, 227]
a.

138. Taylor testifies consistently with his deposition as to Jesse's fine qualifications for the job at the club. Defendant seeks to introduce the letter he wrote to the Nita Transit Authority to impeach his testimony. For the plaintiff make and argue any appropriate objection(s). For the defense, respond. [MacIntyre, 140, 203]

139. Argue the admissibility of Jesse's statement, offered by her on direct, that Marlow's secretary called her on July 22 and: (A) asked her for her social security number, (B) described at length the employees' lounge at the club and told Jesse in detail how lavish it was, and (C) said, "I have already prepared your W-4 forms. They are here on my desk." [MacIntyre, 111-12]
a. (A) it's a question, not an assertion. Not hearsay. b. (B) not TOMA, not hearsay. c. (C) not TOMA, it's used to show that someone is hired, not hearsay.

140. Marlow testifies to the club's firm policy against hiring ex-convicts when Jesse applied. Rev. Taylor is asked whether Marlow had previously told him they would hire ex-convicts. This alleged conversation was not raised during Marlow's cross. For the defense make any appropriate objection(s). For the plaintiff, respond. [MacIntyre, 140]
a. Defense: 403, hearsay, b. Plaintiff: this is for impeachment c. Defense: extrinsic evidence for impeachment, can't do this unless on cross

141. Plaintiff offers Reverend Taylor's March 12 letter to Easterfield. Defendant's only objection is hearsay. For the plaintiff, respond. For the defense, reply. [MacIntyre, 197]

142. Quinn Washington testifies for the prosecution and says that, on the night of 9/10, she told Mitchell, "Joe, what have you done to Leslie? Why don't you leave her alone? She's afraid of you, Joe." Defense objects on hearsay grounds and moves to strike. For the plaintiff, respond as to each of those sentences, one at a time. For the defense, reply. [Mitchell, 44]

xxiv.

xxv. xxvi.

xxvii. xxviii.

xxix. xxx.

xxxi. xxxii.

a. motive

143. On redirect, Jesse is asked why she pled guilty. She answers she did that because her lawyer told her that if she didn't she would be found guilty anyway and sentenced to fifteen years. Defense objects and moves to strike on hearsay grounds. For the plaintiff, respond. For the defense, reply.
[MacIntyre, 114-15]
a. Not TOMA, but to explain why she took the plea (she was scared)

144. Kelly Emerson is testifying for the plaintiff about her call to Jesse after finding the brooch. She says Jesse told her "I can't get a job. Every I turn Mr. Easterfield ruined my chances for the job." Defense objects on hearsay grounds. For the plaintiff, respond. For the defense, reply.
[MacIntyre, 147-48]

145. Ross Easterfield testifies for the defense. On cross-examination, the plaintiff asks him what Mrs. Easterfield said as Jesse left the library ("That vulgar little tramp!"). For the defense, make and argue any appropriate objection(s). For the plaintiff, respond. [MacIntyre, 121]
a. Objection: relevance, 403, hearsay b. Not TOMA, but to show malice

146. Jesse calls Gina Lordowicz, a pawnshop owner in Nita, who is asked a question the defense knows will elicit evidence that she was approached by a small-time thug whose name she doesn't know who told her "this Easterfield woman I know wants to unload a piece of jewelry off the books." For the defense make and argue any appropriate objection(s). For the plaintiff, respond. [MacIntyre]
a. relevance, 403, hearsay b. Plaintiff: goes to whether Jesse took the brooch, alternative theory

147. Jesse calls Frank Holman and her counsel asks, after appropriate foundation, "What did you tell Jesse about your plan to rob the gas station." Defense objects on hearsay grounds. For the plaintiff, respond. For the defense, reply. [MacIntyre]
a. He didn't say anything, not a statement.

148. Reverend Taylor has testified. On cross, defense asks whether Jesse, on July 17, shouted out, "Do you think I took it [the brooch]?" and then started crying and said, "Oh, I'm sorry." Plaintiff objects on hearsay and relevancy grounds. For the defense, respond. For the plaintiff, reply.
[MacIntyre, 138]
a. Plaintiff: objection hearsay

149. Emerson seeks to testify to the words the Easterfields exchanged in the argument recounted Kelly Emerson's deposition. Defendant objects on hearsay grounds. For the plaintiff, respond. For the defense, reply.
[MacIntyre, 149]
a. Not TOMA, but to establish that their marriage is deteriorating. It gives her motive to lie about the brooch and make the tennis coach go away.

150. Ross Easterfield testifies for the defense. He is asked to testify about what was said in his to conversation with Peter Zanoni on 7/17. Plaintiff objects on hearsay grounds. For the defense respond. For the plaintiff, reply. [MacIntyre, 123]
a. Plaintiff: objection hearsay

151. Jesse's counsel asks her what she said to Mrs. Easterfield upon returning to the dining room on 7/17. Defense counsel, knowing she will say she said, "You know it will turn up. It always does" objects on hearsay

xxxiii.

xxxiv. grounds. For the plaintiff, respond. For the defense, reply. [MacIntyre, 108]
a. Not hearsay, because not TOMA. We're not saying that the brooch will turn up.

152. Kelly Emerson, testifying for Jesse is asked questions eliciting each of the following statements about Ross Easterfield's conversation with his wife re: an earlier "missing" piece of jewelry. Separately as to each, plaintiff to respond to defense's hearsay objection. Defense to reply.
[MacIntyre, 145]

1."She looked down at her left hand and didn't see the ring on her finger. She gave a jump and shouted in a loud voice, "Oh my God, who took my engagement ring?" * * *Not TOMA, just to show that she often misplaced jewelries.

2.Her right hand was on her lap and so Mr. Easterfield started asking her, "Where did you see it last?" * * * Not statement, this is a question

3.After about a minute of this, she lifted her right hand to gesture. Ross Easterfield said, "What's that?" Not statement, this is a question.

4.They saw it was the ring. He threw down his Wall Street Journal and walked out.) This is an act. Did he intend to communicate something? No. this is just frustration, so it's an assertive.

153. Marlow (who had confronted George Williams, the tennis coach) testifies for the defense. On cross, plaintiff asks the following: (A) Was Mrs. Easterfield having an affair with your tennis coach? Cash out the insurance because he was demanding money to get out of her life. (B) Was there a rumor to the effect that Mrs. Easterfield was having an affair with your tennis coach? Hearsay objection. (C) [After laying the foundation for Marlow's conversation with George]
What did you say to him and he say to you? Hearsay objection, but not TOMA because we're trying to establish the relationship. Defense to make and argue any objection(s). Plaintiff to respond.
[MacIntyre, 162]

b. Confrontation Clause i. ii.

iii. iv.

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." Ohio v. Roberts: two pronged approach: a. Necessity prong: declarant must be unavailable before a hearsay statement is admitted b. Reliability prong: only reliable hearsay can be offered i. Must be within "firmly rooted" HS exception, or, if not, ii. Requires showing of "particularized guarantees" of trustworthiness The Rule: Out-of-court testimonial statements by declarants are not admissible against criminal defendants UNLESS a. Defendant has opportunity to cross declarant at trial OR b. The declarant is unavailable AND the defendant had a prior opportunity to cross-examine the declarant Testimonial vs. Non-Testimonial (examples) a. An emergency call to a 911 operator? Non-testimonial. (Davis). b. Affidavit for police at the scene after a crime has been committed---
with no on-going emergency? Testimonial. (Hammon). c. Talking to police away from the scene of a crime after the crime has

v.

vi. vii.

viii. ix.

been committed but danger continues? Non-testimonial (Bryant). d. A written certificate from a police analyst concluding that white powder found in the possession of the defendant was cocaine?
Testimonial. (Melendez-Diaz). e. Written report of BAC validated and explained by tech familiar with BAC testing procedures but who did not actually have anything to do with this test? Testimonial. (Bullcoming). f. An expert relying on evidence as to which the expert is not competent to testify? Non-testimonial. (Williams). Confrontation clause probably safe statements a. Criminal cases only b. Accused only c. Only applies to testimonial statements d. Does not apply if declarant testifies at trial e. Does not apply if declarant unavailable and prior opportunity for cross examination f. Right can be forfeited by wrongdoing g. Dying declarations on historical grounds?
h. Does not apply to non-truth of matter uses i. Hearsay rules still matter i. Even if CC is satisfied, hearsay may be an issue ii. If hearsay is satisfied, CC may be an issue

154. The prosecution calls Officer Smith who testifies from personal knowledge about the typical police procedure for conducting a paraffin test, a ballistics test, and an examination of a firearm. He also testifies that he has read the crime lab report prepared by John Pierce, and the procedures described in that report confirm that the the lab followed protocol. On that foundation, a Nita statute requires admission of the the lab report. For the defendant make and argue any appropriate objection. For the prosecution, respond. [Mitchell, 79-82]
a. we need to have a chance to cross him

155. Slyviak testifies about finding the letter from Wilson studios and lays the foundation for its admission as an exhibit. When the exhibit if offered, the defense objects on Confrontation Clause grounds. For the prosecution, respond. For the defense, reply. [Mitchell, 22, 25]
a. Objection: CC b. It's testimonial

156. Mary Pietro testified at Joe's first trial and then moved to New Zealand. She declines to return for the second trial. After authenticating it, the prosecution offers a certified copy of Pietro's testimony from the first trial. The defense objects on Confrontation Clause grounds. For the prosecution, respond. For the defense reply. [Mitchell, 23]
a. Objection: CC b. Prosecution: they had a prior opportunity

157. Officer Slyviak testifies for the prosecution that he spoke to Brooke Thompson at the scene and she identified the person who shot Leslie. The prosecution then asks, "who did she identify as the shooter?" The defense makes a Confrontation Clause objection. For the prosecution, respond. For the defense, reply. [Mitchell, 17]
a. Prosecution: it's not testimonial, and Brooke is going to be on the stand later. b. If they didn't call Brooke in the end: motion to strike and request

x.

jury to disregard the testimony

158. Assume that right after the shooting, Brooke's neighbor called 911 to report hearing gunshots outside and going to investigate and seeing Leslie lying on Brooke's porch in a pool of blood. Slyviak arrived 3 minutes after that call. The neighbor told Slyviak that she had seen a white car that looked like Joe's driving away just after hearing the shots. The neighbor died just before trial. The prosecutor; (a) offers the 911 call tape, and (b) asks Slyviak what the neighbor told him. The defense objects to both on Confrontation Clause grounds. For the prosecution respond. For the defense, reply. [Mitchell]
a. An emergency call to a 911 operator? Non-testimonial. (Davis). b. Talking to police away from the scene of a crime after the crime has been committed but danger continues? Non-testimonial (Bryant).

c. Definitional exclusion i.

Prior statement by the witness 801(d)(1): A statement that meets the following conditions is not hearsay: A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; [PIS= prior inconsistent statement]
(B) is consistent with the declarant's testimony and is offered: [PCS=
prior consistent statement]
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or (C) identifies a person as someone the declarant perceived earlier.

ii. 801(d)(1)(A) PIS elements a. Declarant testifies b. Must now be cross-examinable concerning the prior statement c. Statement must be "inconsistent" with present testimony d. Statement must have been made subject to penalty of perjury in a "prior proceeding" or "deposition". 801(d)(1)(B) PCS elements a. Declarant testifies b. Must now be cross-examinable concerning the prior statement c. Statement must be "consistent" with his present testimony d. Must be offered to i. Rebut a charge of "recent fabrication or improper influence or motive", or ii. To rehabilitate the declarant's credibility as a witness when attacked on another ground 801(d)(1)(C) ID a. Declarant testifies b. Declarant is cross-examinable about prior statement c. Statement is one of identification of a person d. Statement is of a person perceived earlier

160. Plaintiff calls Reeve Winsor who testifies that he negatively evaluated

iii. iv.

v.

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