CVLS Hearsay Refresher

• Who Cares About Hearsay?

• A Four-Step Hearsay Formula

• Hearsay Exceptions

• Questions

Hearsay: Why We Care

Hearsay raises concerns about reliability.

Is the witness’s testimony reliable enough to be admitted as evidence?

Hearsay: Why We Care

• Perception

• Memory

• Narration

• Sincerity

Hearsay: Why We Care

• Oath

• Observation

• Cross-Examination

Defining Hearsay: A Four-Step Formula

• A declarant’s

• Out-of-court

• Statement

• Offered at trial to prove the truth of the matter asserted.

Defining Hearsay: A Four-Step Formula

• A declarant’s

• Out-of-court

• Statement

• Offered at trial to prove the truth of the matter asserted.

Defining Hearsay: A Four-Step Formula

The declarant is the person who made the statement.

Out-of-court means that the declarant did not make the statement while testifying at the current trial or hearing.

FRE 801(a)-(c): Defining Hearsay

• A declarant’s

• Out-of-court

• Statement

• Offered at trial to prove the truth of the matter asserted.

FRE 801(a): What is a statement?

• An oral assertion

• A written assertion

What About Non-Verbal Conduct?

Non-verbal conduct may be hearsay if it is intended as an assertion and offered for the truth of the matter asserted.

FRE 801: Defining Hearsay

• A declarant’s

• Out-of-court

• Statement

• Offered at trial to prove the truth of the matter asserted.

Why the “Truth” Matters

An out-of-court statement offered to prove that what a declarant said is true is inadmissible [if no exception applies] as there is no way to verify it for accuracy.

The declarant is not at trial, under oath, observable by a jury, or subject to cross.

Non-TOMA = Non-Hearsay

If counsel can convince the court that the out-of-court statement is offered for a reason OTHER than its truth, the statement is admissible as non-hearsay.

What are some other reasons?

Non-TOMA: Common Examples

OOCS offered to prove the effect or impact on the listener.

OOCS offered to show a legal obligation (“verbal or legal act”).

Legal Acts. . .

Transactions:

• As we sat with the realtor, James said, “I accept the seller’s offer.”

• Then Bob said to the estate planner, “I will leave my summer cottage to my third wife, Irma.”

Non-Hearsay: Effect on the Listener

Statements offered for EOTL do not depend on the truth of the assertion.

What matters is simply that the words were spoken and the listener heard them.

Non-Hearsay: Effect on the Listener

The key in effect-on-listener is not the P-M-N-S of the out-of-court speaker but what the out-of-court listener heard.

It is critical to examine why the evidence is being offered.

A Place In the SunA bus driver testifies about a conversation he heard between a man and a murder victim, during which she demanded that he marry her.

Is this testimony based on impermissible hearsay? How might you argue for its admission at trial?

Effect on the ListenerThe statement, whether true or not, is relevant to show that the alleged killer had a motive to murder the victim.

Mundy’s First TrialA DEA task force agent testifies, “I got a call from my informant. He told me that [defendant] was selling drugs from his mother’s home. We then began conducting visual surveillance of the home.”

Mundy objects! Hearsay?

Mundy’s First TrialThe evidence was offered not for the TOMA – but to explain why the task force began to watch the home, a fact that did not depend on the tip’s truth.

The court provided a limiting instruction that the tip should only be used to show why the officers went to the home.

“Not Hearsay” = Exceptions

Prior statements by witnesses would “fall within the definition of hearsay” but are “excluded” from it.

Treat these statements as exceptions to the four hearsay components.

FRE 801(d)(2): Statement of Party-Opponent

A statement is not hearsay if it is offered against an opposing party and:

(A) Was made by the party in an individual or representative capacity [or]

FRE 801(d)(2)(A): Statement of P-O

A party’s own words are not hearsay when offered against her at trial.

FRE 801(d)(2): Statement of Party-Opponent

Agents:

(D) Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed [or]

FRE 801(d)(2): Statement of Party-Opponent

Co-conspirators:

(E) Was made by the party’s co-conspirator during and in furtherance of the conspiracy.

FRE 801(d)(1)(A): Prior Inconsistent Statement

Declarant testifies and is subject to cross-examination about a prior statement

The statement is inconsistent with the declarant’s testimony

The statement was given under penalty of perjury at a trial, hearing, or other proceeding or at a deposition.

FRE 801(d)(1)(A): Prior Inconsistent Statement

To be admissible, the prior statement need not have been subject to cross-examination at the time that it was made -- just at the time it is offered.

Example: Domestic Assault• Alleged victim testifies in

front of a grand jury that her boyfriend hit her in the eye.

• At trial, she then testifies that it was an “accident.”

• The prosecutor then moves to admit the her grand jury testimony. In? If so, how?

FRE 803: Declarant Unavailability Immaterial

FRE 803 is based upon “the theory that [certain] hearsay statement[s] may possess . . . guarantees of trustworthiness sufficient to justify non-production of the declarant even though he may be available.”

FRE 803(1): Present Sense Impression

• A statement

• Describing or explaining an event or condition

• Made while or immediately after the declarant perceived it.

FRE 803(2): Excited Utterance

• A statement

• Relating to a startling event or condition

• Made while the declarant was under the stress of the excitement that [the event] caused.

803(1) vs. 803(2)

Questions?