Hearsay (801)

I. We have rule bc the D is denied the opportunity to x-examine (at the time stmt was made) the declarant re their
perception, memory, veracity, and communication (ability to relate her stmt.)
II. Trial Safeguards against these Mistakes: X-Examination (most effective), Oath/Perjury (Less effective in a
secular world, guards only against deception), and Demeanor (jurors judge by D's appearance and conduct)
a. Hearsay- an out of (current) court stmt by a declarant offered to prove the truth of the matter it asserts
i. Declarant- must be a human (not machines or animals)
1. Not what time the clock says, or MPH on a speed gun, electronically generated
information
2. Not Drug-sniffing dog
ii. Witness- a person making a statement in court (a declarant can be a witness)
1. Witnesses must have personal knowledge (from their senses) to testify (unless
opinion)
2. If Declarant is Witness it's still Hearsay bc no contemporaneous X-examination
iii. "Offered to Prove Truth of the Matter"
1. Does the content need to be Believed to be Valuable/Relevant
2. NOT whether it was made or not
iv. Statements can be
1. Oral
2. Written
3. Non-Verbal Conduct if Intended to be an Assertion
a. Did the declarant Intend to communicate words through conduct?
i. Pointing, Shaking Head, Sign Lang, Sea Cpt. w/ an AUDIENCE,
filming a fight
b. NOT
i. Non-Assertive conduct (implied assertions) bc less chance of lying
1. Opening umbrella, absence of complaints, cop made D
stutter, involuntary (ouch!), Photos/video (unless of
Diary), 7yo describing molester's room, Sea Cpt. w/ NO
AUDIENCE, flight after accusation
c. 104(a)- Judge must determine declarant’s intent by a preponderance of the
evidence
v. Non Hearsay uses:
1. Show Effect on the Listener
a. Warning to Show Notice, Knowledge, Instruction or Threat
 2. Circumstantially (Indirectly) Declarant's State of Mind
i. Belief (like, dislike), Knowledge, Duress, Good Faith, provocation
or reasonable apprehension of bodily harm (Self-Defense), Insanity
1. "My husband's a cheat" = dislike
2. "I am President Lincoln" - insanity
b. Show Motive
3. Verbal Acts/Legally Operative Facts - The statement itself is part of the
substantive law
a. Does the statement have immediate legal significance
i. Contracts (words of offer, acceptance)
ii. Fraud ("the car is new")
iii. Defamation and Libel statements
iv. Acknowledging Debts
v. "I'll have sex w u for $"
b. Example
i. An insurance policy not hearsay because it was a legally operative
document defining the rights and liabilities
4. Impeach Credibility (Diff. Stmts.) BUT In CA can be used for TRUTH neways
5. Perjury
6. Probable Cause
7. Verbal Marker
8. Trace Evidence
b. 403- Used when there is a permissible use of a hearsay statement (notice) and an impermissible use (to
prove the truth of the matter it asserts)
i. Prejudice- jury will use the evidence for its improper use
ii. Close cases should "be resolved in favor of admissibility"
c. Multiple Hearsay- only admissible if both hearsay statements are satisfied
d. Demonstrative Evidence- Hearsay does not apply because it is not being offered to prove the truth of
the matter it asserts

HYPO: If D was filmed arguing, then it would be a party admission, and the conduct (filming) might be a
response to a present sense impression
III. Exemptions (NOT Hearsay) 801(d)- certain out-of-court statements are not considered hearsay and thus,
when relevant, are admissible as substantive evidence (prove the truth of the matter it asserts)
a. 801(d)(1) Witness’s Prior Statements (Must be Available/Subject to X)
 i. The witness testifying at trial or hearing must be identified as the same person who made
the out-of-court statement and subject to cross-examination
1. Subject To- satisfied when the declarant is placed on the stand under oath and
responds willingly to questions
a. A person may not be subject to cross because of constitutional prohibition
(Confrontation Clause), privilege
ii. 801(d)(1)(A) Prior Inconsistent Statement
1. 104(a) Foundational Requirements:
2. A prior inconsistent statement is not hearsay if it was made:
a. Under Oath
b. At a prior Trial, Hearing, Deposition, Grand jury, Prelim. Hearing…
i. Inconsistency-
1. Any slight difference between the two statements;
evasive answers; silence; changes in position; reluctance
to testify
ii. Oath
1. Prior statement was subject to penalty of perjury and
person administering oath had legal authority to do so
3. Effect- A statement made by the testifying witness during a (prior proceeding under
oath) that is inconsistent with her in-court testimony is admissible:
a. To impeach witness’s credibility and
b. Substantive proof (for the truth)
4. Any prior inconsistent statement (even if no oath) is permissible for impeachment
purposes even if it falls outside of (1)(A) scope
iii. 801(d)(1)(B) Prior Consistent Statements
1. A prior statement consistent with trial testimony
a. Need NOT be under Oath
b. Used to Rebut an express or implied charge that the witness is Lying or
exaggerating because of some Motive
i. Only if Stmt was made BEFORE the alleged motive to lie arose
2. Prior consistent statements are only admissible after a witness has been impeached
(on cross or by extrinsic evidence)
3. A prior consistent statement outside the scope of (1)(B) may be relevant for
rehabilitation purposes (non-truth)
iv. 801(d)(1)(C) Prior Statements of Identification
 1. Must be made
a. AFTER declarant perceived him
i. Identification does not have to be under oath or even consistent
with trial testimony
ii. Declarant is designating a particular person (or photo) as being the
same person previously perceived, can be a composite sketch
b. 801(d)(2) Admissions by Party-Opponents (must be offered against the party)
i. Declarant’s prior statement (fact or opinion) must be offered against the opposing party
1. Personal Knowledge NOT required
a. Irrelevant if declarant does not remember making statement
ii. 801(d)(2)(A) A Party’s OWN Statement (written, oral or non-verbal conduct (bribe offer))
1. Must be made
a. By a Party
b. Offered Against that Party
2. Any out-of-court statement by any party in any action may be admissible
a. Even if the individual person was speaking as a representative of an entity
(agent for a corporation) (wolf-bite)
3. Must be NOT coerced
4. Multiple criminal defendants- whenever one declarant-defendants confession
implicates another codefendant, the court may preclude admission unless declarant-
defendant can be cross-examined
iii. 801(d)(2)(B) Adoptive Admissions
1. A party may expressly or impliedly adopt someone else’s statement as their own if:
2. Prior statement can be
a. Written, Verbal, Conduct
3. Party has done something to manifest adoption
a. Words- Answering yes
b. Conduct- Nodding the head to a question
c. Silence (Stmt must be)
i. Heard and Understood
ii. Were Able to Respond, had Motive or Opportunity to Deny
iii. Response would be natural/normal/reasonable
iv. Party failed to respond (implied admission)
1. Rarely if to Police in a criminal case
4. Does not need to be a party's stmt.
iv. 801(d)(2)(C) Vicarious Admissions (Spokespersons)
1. Must be authorized by a party to speak on its behalf can be admitted against the
party as an admission (Spokesperson)
a. Example: company’s press agent, attorney’s are authorized to make
statements for a party, minutes taken down by a secretary, employer-
independent contractor, parent-child
2. Co-Parties NOT merely enough to be admissible, must have authority
3. 104(a) Determination of authorization
a. Contents of the statement itself may be used to determine authorization but
it is not sufficient on its own
i. Must be by a preponderance of the evidence
v. 801(d)(2)(D) Admissions by Agents, Servants, and Employees
1. Statements by an agent concerning any matter within the scope of her
employment, made during the existence of the employment relationship, are
admissible against the party/principal
a. Need not be authorized as a Spokesperson, Eg. Truck driver accident on job
i. Agents-
1. does the principal have the right to control the manner and
method of the agent
a. Business Partners included
ii. Scope
1. Statement does not need to be made within scope of
duties, only that it matches subject matter of employee’s
job description. Must still be employed, can't be previous
employee. ***NOT in CA though***
iii. Example
1. Statement by a manager to an employee during holiday
party complimenting her on performance admissible
against company for discrimination
2. 104(a) Determination of Agency
a. Contents of the statement itself is not sufficient to prove authentication
vi. 801(d)(2)(E) Co-Conspirator’s Admissions
1. Must be
a. During the Course of and
b. In Furtherance of
 c. a conspiracy to commit a crime or a civil wrong, at a time when
declarant was participating in the conspiracy
i. Co-conspirators were members of same conspiracy
1. Membership- a knowing meeting of the minds to further a
common objective voluntarily
ii. Participation
1. Statements made prior to the party joining the conspiracy
are Inadmissible
2. Statements made during concealment phase are outside
scope
iii. Furtherance
1. Securing a sale, confirming lines of command, recruiting,
possibly statements to potential customers
2. NOT to the Police after Arrest bc Conspiracy ends
2. 104(a) Determination of Conspiracy
a. Content of the statement itself is not sufficient to prove conspiracy
IV. Exceptions- Declarant’s Availability Immaterial 803-Theory- the out-of-court statement was
made under circumstances that make the statement reliable and better than live testimony
a. Requirement for all exceptions
i. Declarant must have Personal Knowledge since the statement is offered for its truth
ii. Prior statement must still be Relevant
iii. A statement is automatically admissible if it falls within an exception unless another evidence
rule applies
1. The credibility of the statement can always be attacked
b. 803(1) Present Sense Impressions
i. Theory- The contemporaneousness of the statement (no time for calculated misstatement and
the witness testifying likely observed same thing) and the event reduces the chances that the
declarant lied or as a defect in memory
ii. 104(a) Foundational Requirements
1. Stmt. describing or explaining the occurrence of an event or condition, made
while perceiving the event or immediately thereafter, is admissible
a. NOT a shocking or exciting event
b. Describe or explain event or condition
i. Statement describes a present description, NOT past
ii. "Look at that car go"
c. Occurrence
 i. The contents of the statement itself may establish occurrence of an
event
d. Immediately thereafter
i. A few seconds to minutes; one hour was held to be too long
ii. Reliability is the underlying theme
c. 803(2) Excited Utterances
i. Theory- The spontaneity of the declaration and consequent lack of opportunity for reflection
and deliberate fabrication ensure trustworthiness
ii. 104(a) Foundational Requirements
1. A declarant’s statement made during or soon after a startling event, relating to
the startling event, while under the stress of excitement caused by startling event,
is admissible . Can be Opinion
a. Startling event-
i. An event that produces a nervous excitement
ii. Contents of the statement itself may satisfy that there was a
startling event
b. Stress of Excitement
i. Statement must have been made before declarant had time to
reflect on it
1. Passage of time is crucial, but not dispositive
2. declarant's age
3. the nature of the event
ii. Statements by young children and cases of domestic violence have
longer periods of time declarant is under stress
c. Rekindling-
i. Can be Hours/Months later. Events that remind declarant of the
startling event may put declarant back under stress of excitement
(PTSD)
d. Cause
i. Do not be to technical
ii. Stmt. must relate to the startling event
d. 803(3) Present State of Mind Declarations
i. Theory- Declarant is making a contemporaneous observation of her own internal state of
mind so no risk of misperception, memory, or deception. Usually used to prove Intent
ii. 104(a) Foundational Requirements
1. A prior statement of a declarant’s then-existing Mental, Emotional or Physical
condition when he made the statement is admissible
a. State of mind includes any sensation
i. Intent
ii. Emotion
1. I"'m in love w Jill"
iii. Sensation
iv. Physical condition
v. Plan
vi. Motive
vii. Mental feeling
viii. Pain
1. To friend "My ankle hurts so much it must be broken"
ix. Bodily health
b. A declarant’s statement may also be used to show past and future states
of mind
i. 2 days after V’s death, declarant states "I hate V"
1. Permissible to infer that D hated V two days prior to show
motive to kill
c. Prior statement to prove subsequent acts to do something in the future
i. Mutual Life Ins. v. Hillmon, “I intend to go to Co. on Tuesday”
ii. Wife's intent to commit suicide circ. proof husband didn't kill her.
d. When state of mind is directly in issue and material to the controversy
i. "I plan on staying in Co for the rest of my life!" (Domicile)
e. There is a split whether declarant’s statement can be used to prove 3rd party
conduct
2. Exception
a. Inadmissible if it expresses a Memory or Belief of the declarant, and
statement is offered to prove the truth of the fact remembered or
believed, unless it relates to declarant’s Will
i. "I am angry at John because he stole my money last year"
inadmissible because it is a statement of memory (past fact)
ii. "I used to be in love w Jill"
iii. "I think I left the keys in the car"
iv. "I know (he's going to kill me)"
1. can't use to show he killed her but can use to show fear
e. 803(4) Statements for Medical Diagnosis or Treatment (Can be PAST or present)
i. Theory- A person has a motive to tell the truth when seeking medical attention
ii. 104(a) Foundational Requirements
1. A Stmt. Describing
a. Medical history
b. Past or Present symptoms
c. Pain/Sensations
2. General Cause or External Source of symptom if Reasonably Pertinent to
diagnosis or treatment
i. Pertinent- Established by testimony of a physician as to what type
of information is needed from a patient
1. “I was hit from behind by a red mustang with license
place 34234” is not pertinent and suggests motive
ii. Child abuse and molestations cases-
1. Identifying the assailant is usually pertinent so the
treating physician can remove the person from that sort of
environment
2. If assailant is a family member and not a stranger, special
treatment may be recommended like counseling
3. For purposes of Medical Treatment
a. Declarant does not need to be the injured person (he is 3rd party) so long as
he was speaking for purposes of securing medical treatment for the injured
person
i. Can be by a Friend or Family member
b. The rule covers statements made to Doctors, Physicans, Nurses,
Psychotherapists, Social Workers and other health care personnel
i. It does not cover statements made by doctors, etc to patients or
by physicians to physicians
c. Litigation
i. Prior statements made to physicians for the sole purpose of
providing expert testimony are admissible
f. 803(5) Past Recollection Recorded
i. Theory- When a witness states that she cannot remember an event to accurately testify,
even after looking at a writing to try and refresh her memory (612), the writing itself may be
read into evidence if foundation is laid bc it is probably more reliable than current testimony.
ii. 104(a) Foundational Requirements
 1. The declarant is testifying as a witness
2. Prior statement is in the form of a memorandum or record
3. The witness cannot sufficiently remember the subject matter to testify fully or
accurately
a. Witness must testify he does not remember the event
4. The witness once had personal knowledge of the facts in the writing
a. If witness remembers making the written recollection she can testify as the
circumstances the record was created
b. If a witness does not remember making the writing another witness who
saw the record being made or the contents of the record itself or other
circumstantial evidence could be used
5. The writing or record was made by the witness or under her direction when it was
FRESH in his memory
a. Made or Adopted- The witness does not actually have to write the prior
statement down, he can adopt another’s written statement
b. Fresh- At or Near the time of event. No bright line rule; 3 years has been
held to be fresh in his recollection
6. The prior statement Accurately reflect witness’ knowledge
a. Some evidence is needed to show the statement is correct
i. Testimony
1. Q- is the statement correct
2. A- Yes
ii. Other ways
1. The memorandum has erasures and corrections indicating
that accuracy was important
2. A statement contains language, “this statement is an
accurate statement”
iii. The record may only be read to the jury and not admitted as an exhibit
iv. Multiple Declarants- An observer orally reports facts to another person who writes them
down (employer at a staff meeting talks while secretary writes it down)
1. Both declarants, the observer and the declarant, must testify as a witness
a. The recorder must be recording and not interpreting or editing
2. Each hearsay statement must fall within an exemption or an exception
v. Past recollection recorded vs. refreshing a witness’s recollection (612)
1. Witnesses are permitted to refresh their memories by looking at anything. However,
if the witness’s memory cannot be revived, a party may wish to introduce a
 memorandum that the witness made. The contents of the memo may be read into
evidence if foundation is laid even though it cannot be made into an exhibit.
a. Only Oral evidence unless offered by adverse party
vi. 612- Doesn't have to be declarant. Any document that a person looks at in preparing for a
deposition may be discoverable by the opposing party, including documents that otherwise
would be protected by attorney work product or privilege
g. 803(6) Business Records- Record is being used to prove the act, transaction, occurrence, etc
i. Theory- Special reliability is provided by the regularity with which business records are kept,
their use and importance in the business, and incentive of employees to keep accurate
records
ii. 104(a) Foundational Requirements
1. Business-
a. every association, profession, occupation and calling of that kind even if not
for profit (churches, hospitals, schools)
2. Any writing or record concerning acts, events, conditions, opinions or diagnosis
a. Record-
i. memos, reports, records or date compilations (electronic data)
b. Opinions or Diagnosis- Consider 702, 705, 403
3. Made At or Near the time of the event or transaction
a. Identify the activity
i. Should be while still fresh but
ii. A financial statement of a business is not created
contemporaneously with the business record, it is filed months
after the event, however, it reflects work done by the accountant
at or near the time the record was created
4. Made by or Transmitted by a person w Knowledge
a. Original Source (informant)
i. must have Personal Knowledge
ii. must start the process of making the record but then may transmit
it to other people
iii. The original source does not need to be identified
iv. Person making the entries (Recorder) does not need to have PK
b. Informant must be under business duty to convey information as part of
his job to fall under hearsay exception of business records
i. If the informant did not have a business duty to report the
information, the statement must fall under other hearsay exceptions
 ii. A police report based on bystander informant was not a
business record because the informant had no business duty
(law enforcement) to report the information
1. BUT this exception can be a vehicle to show the stmt
was made and can then be allowed in as maybe a party
admission.
2. Bystander’s statement might be admissible as a PSI or EU
3. Police reports might fall under public records exception
c. Recorder must be under a business duty to properly record the info
5. Was kept in the course of regular business activity
a. Declarant/entrant must have had some duty to make the entry as part her
employment
i. Public (statutory) or private (contractual duties of her job)
6. Was made in the regular practice of the business activity
a. Regular practice
i. Make such a record happens systematically and routinely
b. Business Activity
i. Hospital Records (if related to medical diagnosis because that is
business of hospital)
ii. Police reports in civil cases
iii. Payrolls, accounts receivable, accounts payable, bills of lading
iv. An Illegal Gang Activity OK
v. CAN"T be while Closing a business
iii. Additional Requirements
1. Authentication (foundation)
a. Proponent must produce a
i. custodian or other qualified witness to testify about the
foundational requirements or
1. Witness must be able to explain the record keeping
procedures but does not need personal knowledge of the
specific business record
2. Witness does not even need to be an employee of the
business so long as he has familiarity
ii. a written declaration certifying such
 1. Declaration stating, “the records were kept in the
course of business by a person with personal
knowledge”
2. Sufficient because it gives notice to the opponent to test
the adequacy of the foundation through discovery
2. Can't have a lack of trustworthiness
a. Documents prepared in anticipation of litigation, self-serving documents
(promotions, accident reports, public relations)
iv. Using business records to prove Non-Occurrence of an event
1. Lack of any entry showing payment in a business record may be evidence that no
payment was made
v. Test purposes- Consider authentication and best evidence rule
h. 803(8)- Public Records and Official Writings and Reports
i. Theory- Exception is necessary to avoid having public officers leave their jobs constantly to
appear in court. The records are presumed trustworthy because officials are under a duty to
properly record what they do.
ii. 104(a) Foundational Requirements
1. From a Public Agency/Office and is a record or report
a. Writing was made by a public employee. 1st hand knowledge required
2. The Contents of the public record involve
a. The Activities of the agency or office
i. Internal housekeeping records- personnel records, budget
information
ii. Records necessary to performance of its duties- county’s registry o
firefighter applicants, record of an automobile’s title history
b. Matters observed by public employees pursuant to a legal duty
(excluding police observations (reports) in criminal cases)
i. Examples-
1. Weather reports, records of border crossings, damage
reports, Medicare report to prove fraud
2. Vital statistics: births, deaths, and marriages
ii. Criminal Cases-
1. a defendant may offer public records against the
government but not vice versa
2. Police Reports Inadmissible
 3. Inadmissible: Other law enforcement personnel- Includes
individuals whose functions are similar to police officers
(prosecutorial or investigative functions) mug shots,
fingerprints
iii. Civil Cases
1. Police Reports etc are Admissible
c. Factual findings (including opinions and conclusions) resulting from an
investigation made pursuant to law (not against criminal D)
i. Opinions and Conclusions
1. Admissible so long as the conclusion is based on a
factual investigation and satisfies trustworthiness
standard
ii. Examples
1. Official misconduct, accident reports, incident reports,
safety studies, studies on housing and development
2. An officer arrives at an accident (Civil). Several witnesses
tell him D ran a stop sign and hit V. Officer sees tire
marks and decides D ran the stop sign. In his report, he
includes witness statements and his evaluation of the
scene and his conclusion. Everything except witness’s
statement may be admitted. (witness statement only
admitted if it falls under another exception)
3. UNLESS a lack of trustworthiness
a. Timeliness of a report, skill, expertise, motivation of the investigator
4. 803(10) Using Public records to prove Non-Occurrence of an event
a. If public officer diligently searches and fails to find can show didn’t occur.
i. 803(16) Stmts. in Ancient Documents
i. Rationale: hard to find a live witness!
ii. If in existence 20 years or more and authenticity is established, Admissible
j. 803(22) Judgment of Previous Conviction for use in civil or criminal trials
i. 104(a) Foundational Requirements
1. The prior judgment must follow a criminal trial or guilty plea
a. The rule excludes judgments entered after a nolo contendere
2. Judgment must be for a felony
a. Crime punishable by death or more than one year imprisonment
3. Judgment must be offered to prove any fact essential to the judgment
 4. Prior judgment offered against a criminal defendant must be a judgment entered
against that defendant
a. Judgments entered against non-parties (witness) are not admissible unless
used for impeachment purposes
ii. Acquittals are Inadmissible
V. Exceptions- Declarant MUST be Unavailable (804)
a. Unavailability
i. 104(a) Preliminary Fact Finding
1. Asserts Privilege
a. A criminal defendant cannot assert a 5th Amendment right himself,
introduce the former testimony, and claim unavailability…but a witness can
2. Refuses to Testify despite a court order
3. Lack of Memory of the subject matter
4. Death or then existing Physical or Mental Illness
5. Absent (beyond reach of a subpoena) and the statement’s proponent is unable to
procure his attendance or testimony through reasonable means
a. Reasonable means- "Good Faith" effort
ii. NOT if the proponent of the stmt caused the declarant to be unavailable by wrongdoing
for the purpose of preventing the testimony
1. Proof of threats against a witness does not make the witness unavailable, there must
be a purpose underlying the proponent’s conduct
iii. A greater showing of unavailability is required in a criminal trial than a civil trial
1. Eg. mere showing that a witness was incarcerated in a foreign NOT enough bc no
showing he could not be produced by prosecution
b. 804(b)(1) Former Testimony
i. 104(a) Foundational Requirements
1. Prior stmt was made during a Hearing or in a Deposition
a. Testimony was given under Oath or sworn affirmation
2. In a Civil Case, a party or his predecessor in interest must have had an
Opportunity and Similar Motive to develop the testimony at the prior hearing or
deposition, by direct, Cross or redirect examination
a. Predecessor in interest-
i. a prior party who had the same motive disputing the same factual
issues (not legal) as the current case
ii. privity relationship with the prior party
1. grantor-grantee, testator-executor
 b. opportunity and similar motive- see below
3. Or against a Criminal Defendant if:
a. The accused or his attorney had the meaningful opportunity to Cross
Examine the witness
i. NOT at a Grand Jury bc D's lawyer not present, no Cross
1. Pro se D trying to cross examine an expert in a prior suit
is not meaningful
ii. NOT at a Preliminary Hearing
iii. CAN be at a Deposition after Indictment bc can X-Examine
b. Criminal defendant had a Similar Motive at prior civil or criminal
hearing/deposition
i. Similar Motive- Factors between prior and current hearing
1. Trial strategy;
2. Potential penalties or financial stakes;
3. Number of issues and parties;
a. D must have been a party in former action
4. Similarity in facts, same subject matter;
5. Procedural context
ii. If 2 offenses and the Criminal trial is 1st and the Civil is 2nd then
there is the same motive.
1. NOT true if Civil is 1st
iii. At Grand Jury the Prosecution has less motivation
iv. Usually applies to 3rd party witnesses (not parties)
c. 804(b)(2) Dying Declarations- Statements under belief of impending death
i. 104(a) Foundational Requirements
1. In a Homicide/Attempted homicide or Civil case, a declaration
2. made by the unavailable victim
a. Declarant doesn't actually have to die, just that he was unavailable
b. Victim must have his faculties
c. Can't be by someone claiming to have killed V
3. while believing (knowing) his death was imminent
a. No hope of recovery
i. Nature of declarant’s wound, D was told he was going to die NOT
the opinion of medical personnel that he will die
ii. NOT "I think D poisoned me"
 1. A person who expects to die in 3 months has been held to
be imminent
b. NOT a suicide note
4. that concerns that cause or circumstances of his impending death, is admissible
a. Cause or circumstances
i. Identifications of the assailant, descriptions of accidents and events
that led up to mortal injury or death
ii. Lack of Religious Belief only goes to the weight of the stmt.
d. 804(b)(3) Declarations Against Interest- CAN'T be by a Party to action or would be an Admission
i. Theory- The statement is so against a person’s interest that they are unlikely to lie about it
ii. 104(a) Foundational Requirements
1. The statement was so against declarant's pecuniary (debt), proprietary (land), or
penal (criminal or civil) interest or would invalidate a claim against another
when it was made
a. MUST be to the declarant's immediate substantial prejudice
b. The court examines the situation and motives of the declarant
i. Consider mixed motives
1. D tells W that he owes P $500 but in reality he owes him
$2000, the statement is not against his interest
c. Confessions against co-defendants implicating himself and the defendant
may not be admissible because of Confrontation issues
2. that a reasonable person would not have made it Unless it was TRUE
3. Declarant must have personal knowledge of the facts to know it is against his
interest w NO Motive to misrepresent
4. If Many Stmts. only the self-inculpatory ones are admitted bc "stmt." means a single
remark, BUT Collateral Facts such as a price or date are allowed in.
5. If Criminal D wishes to show innocence (exculpate) by introducing statements by
another admitting the crime, there must be additional corroborating circumstances
indicating trustworthiness
a. voluntariness, lack of motive to give favor
b. naming another person as the guilty party is not sufficient unless there is
separate corroborating evidence
c. Example- A convicted criminal will give a false confession (perjury) to
save a friend who has not been convicted yet since the declarant is
unavailable since he is in prison
e. 804(b)(4) Statements of Personal or Family History
 i. 104(a) Foundational Requirements
1. The contents of the prior statement must
a. concern declarant’s own personal or family history or
i. Birth, marriage, divoce, death, relationships
ii. Not subjective as to motives or purposes for marriage, etc
b. concern the personal or family history of someone the declarant is related
to or intimately associated with
i. intimately associated- declarant’s relationship is likely to have
accurate information concerning the matters declared (family
doctor)
2. Personal knowledge is not required
f. 804(b)(6) Forfeiture by Wrongdoing
i. Stmt. offered AGAINST a Party that
ii. Engaged or Acquiesced in Wrongdoing
1. can be overly nice, persuasion, bribe
iii. Intended to and Did make declarant unavailable as a Witness is Admissible
1. Included: Crimes to children, murder, threats, domestic abuse
VI. Residual Exception 807— "Catch all"
a. 104(a) Foundational Requirements
i. The statement must have Circumstantial Guarantees of Trustworthiness
1. Reliability of Testimonial Qualities
a. Showing that 1 or more of testimonial qualities was reliable
i. The statement was sincere, perceived accurately, remembered well,
accurately relayed
b. Totality of the circumstances
i. Declarant's identity, knowledge, qualifications, and motivations (to
lie)
ii. Contents of the statement
iii. Circumstances in which it was made
1. Open ended questions on a phone call (non leading)
2. Passage of time
2. Independent Corroboration that statements are accurate
a. 3 other news papers had a similar story with D’s quotations
ii. The guarantees are Equivalent to the Exceptions of 803 and 804
1. A very loose standard and not rigorous application as to what it should be equivalent
to
 iii. The statement is Offered to prove a Material Fact
1. Generally means the statement must be relevant
iv. The statement is more Probative on the Point than Any other Reasonably Available
evidence
1. It is the Best Available evidence
2. Has the proponent been reasonably diligent attempting to find a substitute for the
hearsay
v. Admission serves the general purpose of the rules and interests of Justice
1. It is Necessary
vi. Notice is given to the opponent
1. Flexible standard as to how much time is needed depending on necessity
2. Proponent must inform the opponent of his intent to use the residual exception, the
particulars of the statement and the location of the declarant

VII. Confrontation Clause (6th Am.) (Crawford)

a. General
i. In criminal cases, D may argue that the use of hearsay evidence violates D’s right to confront
and cross examine the witnesses against him
b. Text
i. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the
Witnesses against him.
c. Rule
i. In a Criminal trial, prior Testimonial evidence may not be admitted unless:
1. The declarant is Unavailable and
2. The defendant had an Opportunity to Cross-Examine declarant at time the
statement was made
ii. Testimonial Evidence- Statements a reasonable person would realize would be used in
investigation or prosecution of crime. About Past events
1. Testimonial (inadmissible)
a. Confessions (eg. of an accomplice to a police officer)
b. Prior Testimony at Preliminary hearings, Grand jury, former trial
c. Depositions
d. Police investigation (depends on motive)
i. Statements enabling police to help in an emergency (911 calls)
non testimonial
 ii. Statement is to prove past events relevant to a late prosecution
(declarant responding to 911 operator questions)likely
testimonial
e. Stmts. to Police in interrogation about past events (recorded)
f. Affidavits
i. Eg. Reporting forensic analysis
1. Summaries of forensic analysis are testimonial and may
not be admitted into evidence unless technician was
unavailable and D had right to cross-examine
g. IRS records
h. Stmts. after Child Abuse has ended

2. Non-Testimonial (admissible) (ONGOING emergency)

a. Accusatory statements in a private diary, statements before the event
occurred, 911 calls reporting crimes, statements for medical purposes
b. Excited utterances/Present Sense
c. Co-conspirators in Furtherance
d. Medical Treatment
e. Most Business Records UNLESS Adversarial
f. Child abuse stmts to Dr's
g. Casual remarks
h. D.V. stmts to friend or neighbors
i. Cry for Help (911 call)
j. Stmts. to Police if for ongoing emergency
d. EXCEPTIONS
i. Dying Declarations
ii. Forfeiture by Wrongdoing
1. Need INTENT
iii. Available
iv. X-Examined
v. Non-Testimonial

e. Allowed:

i. Children allowed by closed circuit t.v. if would suffer stress and not be able to communicate

f. Maybe?
 i. Speaker-phone call x-examining the W

g. Disallowed:

i. A One-way mirror bc need face to face

h. Is a shield to prevent prosecutorial hearsay

i. Is a sword to admit impeachment evidence (prior inconsistent stmts.) (Chambers v. Mississippi)

j. It guarantees an “opportunity for effective cross examination” NOT “cross-examination that is

effective.”

VIII.

IX. Examples 911 Hypos:

X. “My husband just shot me!”

XI. Non testimonial/cry for help

XII. Excited utterance/present sense not for medical trx bc prosecution might not be able to use the identity of the
shooter bc not pertinent to diagnosis/trx.

XIII. “Stmt. made after the emergency identifying the perp” Def. testimonial.

XIV. Eg. Bystander saying I see someone that just stole a purse! It is an excited utterance and therefore is allowed
under exception but is testimonial.

XV.

XVI. Look for 803 1-8, … and line them up w how they relate to the Confrontation Clause.

XVII. The Bruton Doctrine

a. Concerns the problem of an out of court stmt. made by an accomplice who is tried jointly w the D.

b. Admission of a joint D’s confession violates the other D’s rights under the Confrontation Clause, even
if a limiting instruction is given to the jury.

c. In Civil case giving the jury a limiting instruction is standard bc no Conf. Clause, also no privileges
(5th)

i. Ways around it:

1. Separate trials

2. Separate juries

3. Testimony by the Confessing Accomplice

a. Ok bc there is chance to x-exam, doesn’t violate the Conf. Cl.

4. Redaction
 a. May violate declarant’s due process

5. Bench Trial