HiiPower2015 wrote:I'm having trouble differentiating when a statement should be considered hearsay, and when a statement should not be considered hearsay because it is not being offered for the truth of the matter asserted. Does anyone have any tips on how to understand this for the exam? I understand that sometimes notice, and declarant's state of mind are typical non-hearsay purposes, but sometimes even those will be considered hearsay.
Here is what I have in my outline, it is long but it is as short as I can make it to answer your question:
• 801- Hearsay is an out of court statement offered in evidence to prove the truth of the matter asserted in the statement. Statement means a personal’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion. 802 makes hearsay generally inadmissible.
• Evidence the falls into one of the Hearsay exemptions/exceptions it is not automatically admissible. Must also satisfy the requirements of other evidentiary rules of relevance, not excludable for other reasons, or authentication rules and such.
• Declarant defined- 801(a) makes clear the rule doesn’t apply to radar, tracking dogs, or computer generated report if result of an automated process free from human input/intervention.
• If hearsay offered not for truth of matter asserted, a limiting instruction must be given on request, and it can still be barred under 403 if probative value is substantially outweighed by unfair prejudice- that the jury will make the prohibited inference despite limiting instruction. • Examples where not being offered to show truth of the matter asserted:
-Show effect on listener- Offered to show effect on person who heard it, like knowledge, good faith, or reasonableness.
-Verbal Acts- Verbal acts or legally operative words are not hearsay. Uttering certain words has independent legal significance under the substantive law, like words forming a contract, slander, threats, and such. Thus we only care that these words were said, not that they are true.
-Verbal Part of Acts- statements offered only to show that the statements were made and explain an otherwise ambiguous acts. I.E., handing a bag of money to somebody and saying “this is a gift/bribe”. The conduct must have an independent legal significance though like the verbal acts example.
-Prior Inconsistent Statement for Impeachment- offered to show inconsistency between statements, not to show the truth of the assertions contained in the pretrial statement.
-To circumstantially prove declarant’s state of mind- Example, in husband’s claims for damages for loss of companionship, wife’s statement prior to death of “my husband is the cruelest man in the world” would be offered to establish circumstantially to show how wife felt about husband, not to prove he is actually the cruelest man in the world.
Hearsay Exemptions- 490
• Rule 801(d) defines some statements as nonhearsay which the hearsay rule is not a bar to admissibility. There are two categories: 1. Certain prior statements, and 2. Admissions by a party opponent.
• 801(d)(1)(a)- Prior inconsistent statements that do not satisfy the requirements of this rule are still admissible for impeachment governed by 611. For admissibility under 801 they need to meet 4 requirements: 1. Declarant must testify subject to cross at current trial, 2. Prior statement must be inconsistent with witness’s trial testimony, 3. The prior statement given under oath/penalty of perjury, and 4. The prior statement was made at trial, hearing, other proceeding, or in deposition. “Other proceedings” includes grand jury testimony, and require formalized proceedings with transcripts typically.
• 801(d)(1)(b)- Prior consistent statements are admissible to rebut an express or implied charge of recent fabrication, improper influence, or motive. Witness must be subject to cross at trial.
• 801(d)(1)(c)- Statements of identification made by witness prior to trial is admissible whether or not the witness makes an in-court identification so long as the witness is subject to cross examination about the statement at trial, the testimony of other witnesses who were present at the time of the identification is admissible.
• 801(d)(2)- Statement by Party Opponent recognizes 5 types of party admissions: 1. Individual admissions, 2. Adoptive admissions, 3. Authorized admissions, 4. Agent admissions, and 5. Co-conspirator admissions.
-801(d)(2)(A)- Individual admissions is any statement made by a party at any time if relevant and offered by opposing party. The statements need neither be incriminating, inculpatory, against interest, nor otherwise inherently damaging to the declarant’s case. Firsthand knowledge rules doesn’t apply here.
-801(d)(2)(B)- Adoptive admissions is a statement that a party adopts which is admissible as substantive evidence if offered against that party. There can be adoption of 3rd party statement by failing to deny or correct under circumstances in which it would have been natural to deny or correct the truth of the statement.
-801(d)(2)(C)- Authorized Admissions are statements made by a person authorized by a party to speak for that party if offered against that party. Only governs statements by agents who have speaking authority.
-801(d)(2)(D)- Agent Admissions are statements by agents/EE’s 1. Concerning a matter within the scope of their agency or employment and 2. Made during the existence of the agency or employment relationship. Admissible as substantive evidence if offered against the party. If the agency relationship is established, the statement is admissible even if the agent remains unidentified.
-801(d)(2)(E)- Co-Conspirator admissions allowed to be offered against co-conspirator if 1. There was a conspiracy in which the D and declarant participated, 2. The statements were made during the conspiracy, and 3. The statement was in furtherance of the conspiracy.