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Verbal Acts

Words with LEGALLY OPERATIVE EFFECT ARE NOT HEARSAY

Examples
1. words of offer, repudiation, or cancellation of K
2. Words that have the effect of making a gift or a bribe
3. Words that are themselves an act of perjury or a criminal misrepresentation or a defamation

To Show Effect On Person Who Heard Or Read The Statement

A statement that is relevant simply because someone heard it (or read it) isn't hearsay

Example
1. Hearing something can put someone one notice or can give someone a motive or can make someone's false belief reasonable

Party Admission (FRE 801(d))

A statement made by a party is ADMISSIBLE if it is offered AGAINST THE PARTY

You say it, your stuck with it

Vicarious Admissions

A statement by an AGENT or EMPLOYEE of a party is ADMISSIBLE against the PRINCIPAL/EMPLOYER if it concerns a matter WITHIN THE SCOPE of the agency of employment

What Is The N.Y. Distinction For Vicarious Admission?

A statement by an employee or agent is ADMISSIBLE against the principal ONLY IF the agent or employee had SPEAKING AUTHORITY. e.g., CEO, General Counsel, etc...

Former Testimony (FRE 804)

1. The declarant is unavailable
2. The prior statement was given in a PRIOR PROCEEDING/ TESTIMONY UNDER OATH
3. And is offered against a party who, on the prior occasion had an OPPORTUNITY and a similar MOTIVE to cross exam or develop testimony

Relevance to current testimony must be SUBSTANTIALLY SIMILAR to relevance in PRIOR PROCEEDING

Forfeiture By Wrongdoing (FRE 804)

A declarant's out-of-court statement may be offered against any party who:

1. Wrongfully
2. Made the declarant unavailable, and did so
2. With the purpose of preventing testimony

What Is The Burden Of Proof Regarding Party's Wrongdoing?

Federal- Preponderance of evidence

N.Y.- Clear and Convincing evidence

Statements Against Interest (FRE 804)

Declarant is UNAVAILABLE and statement is against declarant's PECUNIARY, PROPERTY, or CRIMINAL interest

*Statement against penal interest MUST be supported by CORROBORATED circumstances

Dying Declaration (FRE 804)

1. Declarant is UNAVAILABLE,
2. Statement was made under belief of CERTAIN and IMPENDING death, and
3. Statement concerns the CAUSE OR CIRCUMSTANCES of the impending death

What Type Of Case May A Dying Declaration Be Used?

Federal- Criminal Homicide/ Any Civil case

N.Y. Criminal Homicide ONLY

Excited Utterance (FRE 803(2))

1. The statement concerns a STARTLING EVENT
2. And was made while the declarant was still UNDER THE STRESS OR EXCITEMENT cause by the event

Present Sense Impression (FRE 803(1))

1. The statement DESCRIBES an event,
2. And is made WHILE the event is occurring, or IMMEDIATELY thereafter

N.Y. Require CORROBORATION of the event

Statement Of Then-Existing Mental, Emotional, Or Physical Condition (FRE 803(3))

Allows admission of

1. A CONTEMPORANEOUS statement

2. Concerning the declarant's THEN EXISTING,
a. PHYSICAL CONDITION
b. STATE OF MIND

3. IT DOES NOT INCLUDE a statement of MEMORY or BELEIF about a PAST condition

4. BUT DOES INCLUDE statements of FUTURE intent, including an intent to do something with a THRID PERSON

What Is The N.Y. Distinction For Statements Of Then-Existing Mental, Emotional, Or Physical Condition (FRE 803(3))

1. If a statement of present physical condition is made to a layperson (rather then a doctor), the declarant must be UNAVAILABLE

2. If a statement of FUTURE INTENT is offered to prove the conduct of a THIRD PERSON, N.Y. requires
a. Corroboration
b. That the D is UNAVAILABLE

Statements For Purpose Of Medical Treatment Or Diagnosis (FRE 803(4))

Allows admission of a statement

1. Made for purpose of obtaining MEDICAL DIAGNOSIS or TREATMENT

2. Concerning
a. PRESENT
b. PAST
c. GENERAL symptoms

3. BUT NOT including
a. Statements of fault
b. The wrong doer

What Is The N.Y. Rule For Statements For Purpose Of Medical Treatment Or Diagnosis (FRE 803(4))

Does NOT apply to statements made solely for the purpose of obtaining EXPERT MEDICAL TESTIMONY AT TRIAL

Business & Public Records (FRE 803(6)(8))

Allows admission of

1. Records of a business

2. Made in the REGULAR COURSE OF A BIZ

3. The Biz MUST REGULARLY KEEP such records

4. Made CONTEMPORANEOUSLY (about the time of event recorded)

5. The contents consist of
a. Information observed by employees
b. Falls w/in some other hearsay except

What Is The Federal Rule Concerning Public Records?

In addition to observations by employee of the public agency, may also include CONCLUSIONS by public employees after an OFFICIAL INVESTIGATION

BUT NOT A POLICE REPORT PREPARED FOR PROSECUTION

What Is N.Y. Rule Concerning Public Records?

Public records does not include FACT FINDING/OPINIONS ONLY BASIC OBSERVATIONS

How Do You Lay The Foundation For Biz Records?

1. Live Testimony

2. Written certification

N.Y.- written certification can ONLY be used in civil cases and only for biz records of a non-party

If Hearsay Is Admitted, What May Opposing Party Do?

May use any of the impeachment methods to attack the credibility of a hearsay declarant

What Are Examples Of Testimonial & Non-Testimonial Evidence A Prosecutor Can Or Cannot Offer In A Criminal Case?

Prosecution may not offer TESTIMONIAL hearsay in violation of the D's right to cross-exam the declarant

1. Affidavits- Testimonial

2. Biz records- Non-Testimonial

3. Police Reports For Prosecution- Testimonial

4. N.Y.- DNA profile of a specimen sent to a law- Non-Testimonial

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