This document provides a cheat sheet on hearsay evidence and how to determine if a statement constitutes hearsay. It explains that a statement must be 1) out of court, 2) a statement, and 3) offered for the truth of the matter asserted to be considered hearsay. Even if a statement meets those criteria, it may still be admissible if it falls under an exception such as a prior inconsistent statement, excited utterance, or statement of a party opponent. The document provides examples of different hearsay exceptions and advises the best arguments for getting hearsay evidence admitted.
This document provides a cheat sheet on hearsay evidence and how to determine if a statement constitutes hearsay. It explains that a statement must be 1) out of court, 2) a statement, and 3) offered for the truth of the matter asserted to be considered hearsay. Even if a statement meets those criteria, it may still be admissible if it falls under an exception such as a prior inconsistent statement, excited utterance, or statement of a party opponent. The document provides examples of different hearsay exceptions and advises the best arguments for getting hearsay evidence admitted.
This document provides a cheat sheet on hearsay evidence and how to determine if a statement constitutes hearsay. It explains that a statement must be 1) out of court, 2) a statement, and 3) offered for the truth of the matter asserted to be considered hearsay. Even if a statement meets those criteria, it may still be admissible if it falls under an exception such as a prior inconsistent statement, excited utterance, or statement of a party opponent. The document provides examples of different hearsay exceptions and advises the best arguments for getting hearsay evidence admitted.
This document provides a cheat sheet on hearsay evidence and how to determine if a statement constitutes hearsay. It explains that a statement must be 1) out of court, 2) a statement, and 3) offered for the truth of the matter asserted to be considered hearsay. Even if a statement meets those criteria, it may still be admissible if it falls under an exception such as a prior inconsistent statement, excited utterance, or statement of a party opponent. The document provides examples of different hearsay exceptions and advises the best arguments for getting hearsay evidence admitted.
-‐ Is
the
testimony
regarding
o 1)
Something
out
of
court?
§ something
that
was
said
or
conduct
that
occurred
outside
of
this
courtroom
and
this
trial
FRE
801(c)(1)
o 2)
A
statement?
FRE
801(a)
§ Verbal
conduct
§ Non
verbal
conduct
intended
to
assert
something,
or
arising
out
of
a
belief
in
a
condition
sought
to
be
proved
o Being
offered
to
prove
the
truth
of
the
matter
asserted
in
the
statement?
FRE
801
(c)(2)
§ Do
we
care
that
the
statement
the
witnesses
is
testifying
to
is
true,
or
do
we
not
care
about
it’s
truth?
§ Is
the
statement
being
offered
for
some
other
reason?
• The
mere
fact
that
it
was
said
o Verbal
acts
affecting
legal
rights
or
nonverbal
conduct
intending
to
affect
legal
rights
• The
mere
fact
that
somebody
heard
it
o Knowledge
o notice
• Because
it
caused
somebody
that
heard
it
to
do
something
o Effect
on
the
listener
o If
the
answer
to
any
of
the
above
is
no,
the
statement
is
not
hearsay
and
is
admissible
over
objection
FRE
801
-‐ If
the
answer
to
all
the
above
is
yes,
it
is
still
excluded
from
the
hearsay
rule
and
admissible
over
objection
if:
o its
a
prior
inconsistent
statement
made
by
the
declarant
who
testified
and
was
given
under
oath
at
a
prior
trial,
hearing,
deposition,
or
other
proceeding,
FRE
801(d)(1)(A),
or
o it’s
a
prior
consistent
statement
and
its
being
offered
to
rebut
an
express
or
implied
charge
that
the
declarant
recently
fabricated
it
or
acted
from
an
recent
improper
influence
or
motive,
FRE
801(d)(1)(B)(i)
or
o to
rehabilitate
the
declarant
witness’
credibility
when
attacked
on
another
ground,
FRE
801(d)(1)(B)(ii),
or
o is
identification
testimony,
FRE
801(d)(1)(C)
or
o was
made
by
your
opponent
or
an
agent
of
your
opponent,
or
was
adopted
by
your
opponent
or
an
agent
of
your
opponent,
or
was
made
by
your
opponent’s
co-‐conspirator,
FRE
801(d)(2)
-‐ If
none
of
the
above
apply,
it
is
still
hearsay
but
might
be
subject
to
an
exception
under
803
(if
declarant
available
or
unavailable)
if
the
statement
is
concerning
a
o Present
sense
impression
(not
in
IL)
803(1)
o Excited
utterance
803(2)
o State
of
mind
(mental,
emotional
or
physical
condition)
803(3)
o Statement
made
for
medical
diagnosis
(patient
to
person
treating)
803(4)
o Recorded
recollection
803(5)
o Business
record
803(6)
and
(7)
o Public
record
803(8)
o Other
reliable
record
as
set
forth
in
the
rule
803(9)-‐(16)
o Market
report
803(17)
o Learned
treatise
803(18)
o Reputation/fact
about
a
person’s
family
history
or
geography
803(19)
and
(20)
o Reputation
concerning
character
803(21)
o Judgment
of
previous
conviction
or
personal/family
status
803(22)-‐ (23)
-‐ If
none
of
the
above
apply
an
the
declarant
is
unavailable,
it
is
still
hearsay
but
might
be
subject
to
an
exception
under
804
if
the
statement
o Is
former
testimony
subject
to
cross
examination
804(b)(1)
o Made
under
belief
of
imminent
death
804(b)(2)
o Is
against
the
declarant’s
interest
804(b)(3)
o Is
about
personal
or
family
history
804(b)(4)
o Is
offered
against
a
party
that
wrongfully
caused
the
declarant’s
unavailability
804(b)(6)
*To
get
hearsay
in
evidence:
-‐ your
best
argument
is
that
the
statement
is
not
hearsay
because
it
is
excluded
from
the
hearsay
rule
(party
opponent,
prior
inconsistent
or
consistent
statement)
-‐ your
next
best
argument
is
that
the
statement
is
not
hearsay
because
it
is
not
being
offered
for
the
truth
of
the
matter
asserted,
but
rather
for
some
other
purpose
-‐ your
next
best
argument
is
that
the
statement
is
hearsay
but
is
subject
to
an
exception
*
Always
listen
for
buzz
words
like
“said,”
“told,”
or
information
the
witness
only
knows
because
she
heard
or
read
it
somewhere
*Object
to
foundation
if
it
is
lacking
and
advantageous
to
do
so.
Object
only
when
your
opponent
asks
the
questions
which
will
elicit
the
hearsay,
or
when
the
witness
begins
offering
the
hearsay.
Passing the Uniform Bar Exam: Outlines and Cases to Help You Pass the Bar in New York and Twenty-Three Other States: Professional Examination Success Guides, #1