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
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Hearsay raises concerns about reliability.
Is the witness’s testimony reliable enough to be admitted as evidence?
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.
Non-verbal conduct may be hearsay if it is intended as an assertion and offered for the truth of the matter asserted.
An out-of-court statement offered to prove that what a declarant said is true is inadmissible [if no exception applies] asthere is no way to verify it for accuracy.
The declarant is not at trial, under oath, observable by a jury, or subject to cross.
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?
OOCS offered to prove the effect or impact on the listener.
OOCS offered to show a legal obligation (“verbal or legal act”).
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.
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 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?
The statement, whether true or not, is relevant to show that the alleged killer had a motive to murder the victim.
A 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?
The 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.
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.
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]
A party’s own words are not hearsay when offered against her at trial.
(D) Was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed [or]
(E) Was made by the party’s co-conspirator during and infurtherance of the conspiracy.
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.
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.
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.”