HEARSAY

1) IS THIS HEARSAY?

Rationale: prefer viva voce evidence (CX, oath, perjury); jury might overvalue; flaws in perception of declarant

1) Out-of-court = current court - not made under oath at the trial in which it is being offered.

2) Statement (by a person): includes a written or oral statement or non-verbal conduct.

-non-persons don’t count. (bloodhound barking, parrots repeating things).

3) (split) Declarant intended to make an assertion (intended to communicate facts).

Declarant = person who made the statement.

-Sometimes same person as witness, just repeating what they said earlier.

(MIN - Dullard): DON’T NEED INTENT to be an assertion barred by hearsay rule.

=more likely to find an implied assertion=> s/t hearsay.

Not convinced that lack of intent to communicate justifies excluding statement from hearsay rule. Best approach is to evaluate assertion in context of the purpose for which the evidence is offered.

Rationale: even without intent, there are still hearsay problems (erroneous memory, faulty perception, ambiguity, though it might solve the sincerity problem).

(MAJ –Zenni): INTENT REQUIRED

No intent=>not assertion => not subject to hearsay.

APP: Calls to the house during raid, trying to place bets. Language wasn’t an assertion, obviously no intent to make an assertion that it was a bookie’s house.

(MAJ) Diaries are still hearsay. (Some say not hearsay, if no intent to share w/ others)

Nonverbal acts can show intent to communicate.

-EXAMPLES: nodding head in response to yes/no question; pointing at someone to ID them as perp; British health minister biting into a burger and having daughter do the same thing. Pretty clearly an implied assertion that he thinks the beef is safe.

-silence: Failure to deny may, in limited circumstances, be an assertion in response to Q.

-Questions: (split): 1) if contains an assertion; 2) if decl intended to make an assertion; 3) never hearsay.

-Exclamations are not assertions:

-Commands/Threats are not assertions: Montana: witness demanded money payoff. Not hearsay.

-Verbal acts: words with independent legal significance are not assertions

-Words cause a change in legal status, regardless of their sincerity. Fact they were made.

-oral statements that constitute/rescind a contract; harassing statements; defamatory statements; slanderous statements; bribing statements; threatening statements; claim of title statements.

-‘please accept this $ as a gift’ (clarifying that it isn’t a bribe, repayment, loan).

4) Statement offered to prove the truth of the matter asserted? ONLY RELEVANT IF TRUE.

When looking at the statement alone (not the broader theory of case or larger principle that the piece of evidence would help prove), the trier-of-fact is being asked to believe that the assertion itself is actually true. (The Diary case: they were offering it to prove TOFMA, that he was with her, then felt sick after. The ultimate goal was conclusion of poisoning. But that was based on inferences).

COUNTEREXAMPLES: not being offered for truth of matter asserted.

-What matters is whether the statement was made, not whether it was true.

-Circumstantial evidence of declarant’s state of mind or beliefs about facts

=statement can be used to show the declarant’s state of mind without asking the trier-of-fact to accept the assertion in the statement as true.

Parry: convos w/ mom, saying that he thought he was working with DEA agent.

Matter asserted: that they guy was a DEA agent. Being offered for SOMETHING DIFFERENT – as basis for inference that, if the statement was in fact made, he knew the agent’s ID.

-Effect on listener

Ex: neighbor: “floorboards on your porch have rotted” offered to show that homeowner was negligent in not replacing them (guest fell through). CANNOT be offered to prove that they were rotted, but CAN be offered to show that homeowner was on notice.

-Impeachment of witness through showing contradiction (SEE IMPEACHMENT BELOW).

NO=> looking at the statement alone, trier of fact isn’t being asked to believe that the statement is actually true, statement is not being offered for hearsay use.

YES=> statement is hearsay. Continue to exceptions.

*Other objections? (limiting instruction request; personal knowledge of declarant?)

2) CONFRONTATION CLAUSE/BRUTON DOCTRINE

6A: “In all crim. prosecutions, the Accused shall enjoy the right … to be confronted with the witnesses against him”

*ON APPEAL: errors = reverse conviction unless the P proves violation harmless beyond a reasonable doubt.

1) Criminal case

2) Evidence is being offered against accused

Ex: CC doesn’t apply to statements introduced by the accused.

3) Statement made out-of-court?

If live witness is testifying about what she did/didn’t perceive and is s/t cross, no CC

4) Statement being used for the truth of the matter asserted

5) Other means around hearsay rule? (if not, then hearsay bars, and won’t be admitted anyway).

6) Declarant currently available for cross-examination under oath at current trial? (Necessarily includes every exclusion to hearsay)

*if declarant is the defendant himself, then no CC problem. Can get up and explain.

IF YES=>NO CC problem.

7) Meaningful opportunity for the Accused to cross-examine the statement earlier? For example, frmr testimony was crossed at prior trial, hearing, or deposition.

-just need opportunity. If you don’t do it, that’s your fault.

*need a similar motive? Unclear.

-SOME have held that entirely unresponsive children are unavailable for CC purposes.

IF YES=> NO CC problem.

8) Forfeiture by wrongdoing (Giles):

Did accused intentionally make the Declarant unavailable in order to prevent them from testifying? (flexible).

*104(a) standard, by a preponderance. (not beyond reasonable doubt).

-conduct: diversion (sending them on a cruise) intimidation, persuasion, killing,

-Intent must go to making them unavailable. Garden-variety murder doesn’t count.

BUT look to full circumstances. Was part of the...

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