Someone recently bought our

students are currently browsing our notes.

X

Evidence Chapter 3 Hearsay Outline

Law Outlines > Evidence Outlines

This is an extract of our Evidence Chapter 3 Hearsay document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School 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:

Table of Contents
Chapter 3. Hearsay..................................................................................................................1
A. The Hearsay Rule and Its Rationale................................................................................................2

1. Introduction....................................................................................................................................2

2. Nonhearsay Uses of Out-of-Court Statements................................................................................4

3. Implied Assertions.........................................................................................................................10
B. Hearsay and Confrontation..........................................................................................................13
C. Exceptions to the Hearsay Rule....................................................................................................19

1. Prior Statements by Witnesses.....................................................................................................19

2. Admissions by Opposing Parties...................................................................................................21 a. Direct Admissions.......................................................................................................................................22 i. Generally.................................................................................................................................................22 ii. Admissions and Multiple Hearsay..........................................................................................................23 iii. Admissions and Completeness.............................................................................................................24 b. Adoptive Admissions..................................................................................................................................25 c. Authorized Admissions...............................................................................................................................26 d. Agent and Employee Admissions...............................................................................................................27 e. Co-Conspirator Admissions........................................................................................................................30 f. Admissions and the Bruton Rule.................................................................................................................32

3. Spontaneous and Contemporaneous Statements........................................................................35

4. State of Mind................................................................................................................................38 a. Generally.....................................................................................................................................................39 b. The Hillmon Doctrine..................................................................................................................................39

5. Injury Reports................................................................................................................................43

6. Recorded Recollection..................................................................................................................44

7. Business Records...........................................................................................................................47 a. Generally.....................................................................................................................................................47 b. Qualifying "Businesses"..............................................................................................................................49 d. Sources of Information...............................................................................................................................52 e. Absence of Record......................................................................................................................................52

8. Public Records...............................................................................................................................53

9. Former Testimony.........................................................................................................................59

10. Dying Declarations......................................................................................................................63

11. Declarations Against Interest......................................................................................................65

12. Forfeiture By Wrongdoing...........................................................................................................68

13. Residual Exception......................................................................................................................71
D. Hearsay and Due Process.............................................................................................................73

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 3. Hearsay A. The Hearsay Rule and Its Rationale

1. Introduction
FRE 801. Definitions That Apply to This Article; Exclusions From
Hearsay
 (a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
 (b) Declarant. "Declarant" means the person who made the statement.
 (c) Hearsay. "Hearsay" means a statement that:
o (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.
 [Professor's definition: "Hearsay is an out-of-court statement introduced to prove the truth of the matter asserted."]
o Witness and declarant can be the same person: when the witness testifies about a statement he made outside of court.
 The witness needn't be a person (it could be a diary), but the declarant must be a live person.
o "The matter asserted" means matter asserted by the declarant,
not by the party.
o "Introduced to prove" means any step in the chain of inferences;
it needn't be the first or ultimate step.
o It doesn't matter how the out-of-court statement is proven.
 A good way to identify hearsay is to consider the chain of inferences the party offering the evidence is asking the party to make.
o If it follows this, it's hearsay: declarant says X; therefore,
declarant believes X to be true; therefore, X is true.
 Inference between statement and belief carries risk of sincerity (declarant lying) and risk of narration (what does declarant mean when saying X).
 Inference between belief and truth carries risk of perception (declarant misperceived situation) and risk of memory (declarant misremembers).
o If it doesn't follow this chain of inferences, it's not hearsay.
FRE 802. The Rule Against Hearsay
 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. Trial of Sir Walter Raleigh for High Treason (1603)
 D was charged with conspiring with Lord Cobham ["W1"] to kill King
James. W1 was interrogated and signed a sworn confession he later recanted. This confession was the chief evidence against D.
 D requests W1 be brought to court to testify.
o If W1 avows the confession, it will make conviction easier.
o Witnesses are brought to testify even when the stakes are low,
and here the stakes are very high.
o W1 is the only one who initially accused D and caused charges to be brought.
o Campion the Jesuit was allowed to meet his accuser face to face.
o W1 is unlikely to lie in D's favor, since W1 is already condemned
(men facing death presumed to speak truthfully) and if D
instigated the treason then W1 would want to seek revenge.
 Court rejects D's request to face W1.
o Any risk to the king must be disallowed.
o When no other evidence, accuser can be heard; but here there is other evidence.
o W1 may contradict prior confession out of fear or favor,
deceiving the jury.
 P produces a witness viva voce named Dyer ["W2"].
o W2 says a Portugal Gentleman [declarant] told W2 that D and
W1 would kill the King.
o P says this statement must have come from "some preceding intelligence" and shows D's "treason had wings."
 D found guilty of treason.
Leake v. Hagert, 175 N.W.2d 675 (N.D. 1970)
Facts:
 Appeal by P from judgment of dismissal of his cause of action and from order of trial court denying motion for new trial.
 P sued D for negligence after D crashed car into the back of a tractor
P was driving.
 D counterclaimed, alleging P negligently drove at night without proper lights.
 All claims and defenses of both P and D were submitted to jury, which dismissed the complaint and counterclaim.
 On appeal, P contends that the trial court erred when it admitted,
over objection, testimony adduced from W1, who investigated the accident and testified D's son told W1 a light on the rear of the tractor had been out for some time.
Opinion (Paulson, J):
 W1's testimony was hearsay and should have been excluded. 

o Hearsay rule prohibits use of a person's assertion, as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it.
o D's son did not testify, was not party to action, was not under oath, was not subject to cross-exam, and was not available to testify because he was in the army overseas.
The erroneous admission was not prejudicial and did not constitute reversible error.
o Error in the admission of evidence is not a ground for a new trial unless such error affects the substantial rights of the parties.
o Other witnesses testified to the same information, and D himself introduced a statement by W1 asserting the same information.

McCormick on Evidence
 The factors upon which the value of testimony depends are:
o Perception.
 Did W perceive and perceive accurately what is described?
o Memory.
 Has W retained an accurate impression of that perception?
o Narration.
 Does W's language convey that impression accurately?
o Sincerity.
 Is W, with varying degrees of intention, testifying falsely?
 To encourage W to put forth their best efforts and to expose inaccuracies with respect to those factors, W are ordinarily required to testify under three conditions:
o Oath.
 May induce feeling of special obligation to speak the truth.
 May impress danger of criminal punishment for perjury.
o Personal presence at the trial.
 Allows fact-finder evaluation of demeanor, which may speak to credibility.
 Solemnity and possibility of public disgrace make testifying falsely more difficult.
o Cross-examination.
 Main justification for exclusion of hearsay.
 A person who relates a hearsay is not obliged to enter into particulars, answer questions, reconcile contradictions, 

remove ambiguities, etc. He can simply assert he was told so, leaving the burden on the dead or absent author.
In a hearsay situation, two "witnesses" are involved. The first complies with all three ideal conditions for giving testimony, but merely reports statements of second "witness." The second is the outof-court declarant whose statement was not given in compliance with the three conditions but contains the critical information.

Tribe, Triangulating Hearsay
 Basic hearsay problem is one of forging a reliable chain of inferences from an utterance of a person not subject to cross-exam, to an event the utterance is supposed to reflect.
o Typically, first link is from utterance to belief it is thought to indicate.
o Second link is from declarant's belief to conclusion about some external event supposed to have triggered the belief.
 Inferential chain is suspect when utterance is not made in court,
where cross-exam could expose inaccuracies in the inferential chain.
o Inaccuracies are usually attributed to ambiguity, insincerity,
faulty perception, or erroneous memory.
 Hearsay problem arises when an utterance is used to prove a conclusion but it mediated by the belief of the actor uttering. No hearsay problem arises when the conclusion can be referred immediately from the utterance.
o An out-of-court statement "I can speak" would be admissible as nonhearsay to prove declarant was capable of speech, for it is the fact of his speaking rather than the content of the statement which permits the inference.

2. Nonhearsay Uses of Out-of-Court Statements
Introduction
 "Out-of-court" is shorthand for any statement other than one made under oath and in front of the factfinder during the same proceeding in which it is being offered in evidence.
o Testimony in an earlier trial counts as out-of-court for the purposes of hearsay rule.
 "Matter asserted" means the matter asserted in the statement offered into evidence, not the matter "asserted" by the party offering the evidence.
o Evidence is typically introduced to support a series of inferential propositions. If any one of the propositions in this chain of inferences is "the truth of the matter asserted" in the out-of-court statement, the evidence falls within the definition of hearsay. 

"Witness" is reserved for someone who testifies under oath from the witness stand.
"Declarant" refers to someone who makes a statement of any kind,
whether or not under oath, and whether in or out of court.
Four ways evidence can come in for nonhearsay purpose:
o indisputably false statement (Lyons: doesn't support matter asserted)
o verbal act (Saavedra: fraud)
o effect on witness (Subramaniam: threat puts witness under duress)
o show belief at time of statement (Parry: believed caller was agent)

Advisory Committee note to FRE 801(c)
 If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted and the statement is not hearsay.
 The effect is to exclude from hearsay the entire category of verbal acts and verbal parts of an act, in which the statement itself affects the legal rights of the parties or is a circumstance bearing on the conduct affecting their rights.
Lyons Partnership v. Morris Costumes, Inc., 243 F.3d 789 (4th Cir.
2001)
Procedural History:
 Plaintiff owned trademarks and copyrights to Barney the dinosaur, and alleged Defendant rented out a "Duffy the Dragon" costume infringing on those trademarks.
 After bench trial, district court entered judgment in favor of D on all claims.
Facts:
 TC found P had not demonstrated a likelihood of confusion between the
Duffy costume and Barney. However, it did so only after disregarding most of the evidence of actual confusion. Ample evidence presented at trial would have supported such a finding, such as principal's testimony that, when she wore a Duffy costume at a school rally, children shouted
"Barney! Barney!"
 Despite initially admitting such evidence, TC dismissed it as "unreliable hearsay."
Opinion (Niemeyer, J):
 If the TC disregarded the evidence because it was hearsay, that conclusion was erroneous.
o P did not offer children's statements to prove the truth of the matter asserted—that the person wearing the costume was in fact
Barney—but rather merely to prove the children expressed their belief that the person was Barney. [Indisputably false statement. Here, nobody believes the matter asserted, that "Duffy is Barney." So the statements surely aren't being introduced to prove the matter asserted,
so there is no hearsay problem. There may, however, be issues of ambiguity or insincerity.]
o This is direct evidence of children's reactions and not hearsay.
This evidence was highly probative of actual confusion, and existence of actual confusion is often dispositive to a trademark infringement analysis.
Judgment vacated.


United States v. Parry, 649 F.2d 292 (5th Cir. 1981)
Facts:
 D was convicted by jury for conspiring to distribute PCP. D did not deny he participated in drug transactions described by undercover agents but argued that, during each of these transactions, he proceeded in the good faith belief that he was working for the agents, assisting them in locating drug dealers.
 In support of position he had known from the outset the agents'
identities, D related a conversation he had with mother shortly after he met the agent and well in advance of his arrest.
o D testified he told his mother a person who called the home was a narcotics agent with whom he was working.
o To corroborate this story, D called mother as a witness.
o Although P voiced no objection to proffered testimony, TC ruled mother could not testify to any conversation between mother and
D.
Opinion (Morgan, J):
 Purposes of hearsay rule is statement not made under oath, in presence of fact finder, or subject to cross-examination cannot be evaluated for trustworthiness and is thus considered unreliable.
o Where out-of-court statement is offered for some purpose other than to prove the truth of the matter asserted, the value of the statement does not rest upon the declarant's credibility and therefore is not subject to attack as hearsay.
 Here, statement was not offered to prove the caller was a narcotics agent or D was actually working with agent, but to establish D's knowledge of agent's identity.
o D offered statement as basis for circumstantial inference by jury that the statement was in fact made—a question to which the incourt witness could testify under oath, before the jury, and subject to cross-examination—then D probably knew the agent's identity.
o Using out-of-court utterance as circumstantial evidence of declarant's knowledge of the existence of some fact, rather than as

Buy the full version of these notes or essay plans and more in our Evidence Outlines.