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Trial Hearsay - Objections and Exceptions |
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Abbreviated table of contents Chapter 1 Hearsay at Trial: Objections and Proffers Chapter 2 What Is (And Is Not) Hearsay Chapter 3 Hearsay and the Confrontation Clause Chapter 4 Prior Statements (Inconsistent, Consistent) and Identification Chapter 5 Admissions by Party Opponent (Direct or through Agent) Chapter 6 Statements of Coconspirators [Rule 801(d)(2)(E)] Chapter 7 Hearsay Exceptions: Availability of Declarant Immaterial Chapter 8 Present Sense Impressions and Excited Utterances [Rules 803(1), (2)]
Chapter 9
Statements of Present Intention, State of Mind, Medical Condition, or for
Medical Chapter 10 Recorded Recollection [Rule 803(5)] Chapter 11 Business Records [Rule 803(6), (7) and 902 (11), (12)] Chapter 12 Public Records [Rules 803(8)–(10)] Chapter 13 Family Information in Certificates, Church Records and Family Documents [Rules 803(11)–(13)] Chapter 14 Property Records [Rules 803(14), (15)] Chapter 15 Ancient Documents, Market Reports, Treatises [Rules 803(16)–(18)] Chapter 16 Reputation Concerning Family, Boundaries and Character [Rules 803(19)–(21)] Chapter 17 Criminal and Civil Judgments [Rules 803(22), (23)] Chapter 18 [Reserved] Chapter 19 Declarant Unavailable—Definition [Rule 804(a)] Chapter 20 Former Testimony [Rule 804(b)(1)] Chapter 21 Dying Declarations [Rule 804(b)(2)] Chapter 22 Statement Against Interest [Rule 804(b)(3)] Chapter 23 Statement of Personal or Family History [Rule 804(b)(4)] Chapter 24 Forfeiture of Hearsay Objection by Wrongdoing [Rule 804(b)(6)] Chapter 25 Hearsay Within Hearsay [Rule 805] Chapter 26 Attacking and Supporting Credibility of Declarant [Rule 806] Chapter 27 Residual Provision [Rule 807] Chapter 28 Lay Opinions and Expert Testimony [Rules 701-703]
EXPANDED Table of Contents Chapter 1 Hearsay at Trial: Objections and Proffers Section §1.100 Preparations for Trial: Review Hearsay Concepts §1.200 Pretrial Motions in Limine §1.300 Presenting Evidence at Trial §1.310 Offers of Proof §1.311 Timing §1.312 Offer of Proof Must Be Made on Record §1.313 Forms of Offers of Proof: The Evidence §1.313.1 Offers of Proof: Grounds for Admissibility §1.314 When Offer of Proof Excused §1.400 Objecting to Hearsay §1.410 An Objection Should State Specific Grounds §1.420 Objection Should Send Message to Jury §1.430 Object on the Record §1.440 New Objection Required When Questions Go Beyond Continuing General Objection §1.450 Limiting Instructions §1.460 Voir Dire of Witness to Confirm Basis for Objection §1.500 Rule 403 and Unfairly Prejudicial Evidence Chapter 2 What Is (And Is Not) Hearsay Section §2.100 Rules Defining Hearsay §2.200 Effect §2.300 The Hearsay Rule in General §2.310 Still Hearsay Even if Declarant Testifies §2.400 There Must be an Assertion of a Fact §2.410 Nonverbal Conduct §2.420 Failure to Have Stated Something §2.430 Words Offered for What They Imply §2.440 Automatically Generated Information Created by Machines §2.500 Statements Not offered for Their Truth §2.510 Caution Needed in Accepting Statements Not Offered for Their Truth §2.520 Common Hearsay Issues in Civil Rights Cases §2.530 Words of Independent Legal Significance (Verbal Acts) §2.540 Background Information for Initiation of Criminal Investigation §2.600 Stealth Hearsay (Conclusions Based on Hearsay) §2.700 News Reports §2.800 Relevant Cases §2.810 Reason for Rule/Exceptions §2.820 Nonverbal Conduct Intended as Assertion §2.830 Nonverbal Conduct Not Intended as Assertion §2.840 Orders, Questions Not Assertions §2.850 Words Offered for What They Imply §2.860 Independent Legal Significance/Verbal Acts §2.870 Background Information §2.880 Evidence Not Offered for Its Truth Chapter 3 Hearsay and the Confrontation Clause Section §3.100 Confrontation Clause: United States Constitution, Amendment VI §3.200 Application: Crawford and Davis §3.210 Opportunity for Cross-Examination at Trial §3.300 What Are “Testimonial” Statements? §3.310 Statements Described as Testimonial in Crawford §3.320 Police Interrogations: Davis §3.330 Checklist of Statements Found Testimonial and Nontestimonial §3.400 Prosecution Must Make “Good Faith Effort” to Have Witness Appear at Trial §3.500 Roberts and Nontestimonial Hearsay §3.600 Nontestifying Codefendants’ Statements (Bruton) §3.700 Prior Identification of Defendant §3.800 Forfeiture or Waiver of Confrontation Right by Misconduct §3.900 Relevant Cases §3.910 Right to Confrontation Generally §3.920 Hearsay Statements Not Admitted for Their Truth Not Subject to Confrontation Clause §3.930 Initial Police Inquiries Upon Arrival at Scene §3.940 [Reserved] §3.950 [Reserved] §3.960 Proof of Unavailability of Declarant §3.970 Statement of Non-Testifying Codefendant (Bruton) Chapter 4 Prior Statements (Inconsistent, Consistent) and Identification Section §4.100 Prior Inconsistent Statements §4.110 Rule 801(d)(1)(A): Statements Not Hearsay: Prior Inconsistent Statement by Witness §4.120 Effect §4.130 Discussion §4.131 Common Law and Changes Made by Rule 801(d)(1)(A) §4.132 Application §4.133 Requirements §4.134 Trial Practice §4.140 Relevant Cases §4.141 Inconsistency §4.142 “Other Proceeding” §4.143 Subject to Cross-Examination at Trial §4.144 Jury Instructions §4.145 Trial Practice §4.150 State Rules §4.200 Prior Consistent Statement by Witness §4.210 Rule (801)(d)(1)(B): Prior Consistent Statement by Witness §4.220 Effect §4.230 Discussion §4.231 Purpose §4.232 Requirements §4.233 Recent Fabrication, Improper Motive or Improper Influence Is Critical §4.234 Statement Must Predate Motive to Fabricate §4.235 Criminal Cases §4.236 Prior Statement to Rehabilitate Witness or Where Opposing Counsel Has Opened Door §4.237 Trial Practice §4.240 Relevant Cases §4.241 Requirements for Admission §4.242 Rehabilitation §4.243 Scope of Admissible Statement §4.250 State Rules §4.300 Prior Statement of Identification §4.310 Rule (801)(d)(1)(C): Prior Statement of Identification by Witness §4.320 Effect §4.330 Discussion §4.331 Basis §4.332 Purpose §4.333 Failure to Identify §4.334 Reliability §4.335 Suggestive Procedures §4.336 Photographs; Mug Shots §4.337 No In-Court Identification §4.338 Trial Practice §4.340 Relevant Cases §4.341 In General §4.342 Identification by Photograph §4.343 Lineup §4.344 Other Procedures §4.345 Failure to Identify §4.350 State Rules Chapter 5 Admissions by Party Opponent (Direct or through Agent) Section §5.100 Rule (801)(d)(2): Statements Which Are Not Hearsay: Admissions by Party-Opponent §5.200 Effect §5.300 Discussion §5.310 Basis for Rule §5.320 General Requirements §5.321 Must Be Offered Against a Party by an Opposing Party §5.322 Statement Does Not Have to Be Inconsistent or Against Party’s Interest §5.323 Personal Knowledge Not Required §5.324 No Proof of Trustworthiness Required §5.325 Availability of Declarant Not a Factor §5.326 Cumulative Capacities §5.327 Judicial and Other Admissions §5.328 Pleas of Guilty §5.330 Personal Statements §5.331 In General §5.332 Statements in Representative Capacity §5.340 Adoptive Admissions §5.341 Party Manifests Adoption §5.342 Adoption by Silence §5.350 Agent Authorized to Make Statement §5.351 Authority Granted §5.351.1 Rule 30(b)(6) Witness §5.352 Attorney §5.353 Expert §5.354 Accountant §5.360 Statement of Agent or Employee Concerning Matter Within Scope of Agency or Employment §5.361 Requirements §5.362 Agent Authorized to Make Statement vs. Employee §5.363 Establishing Foundational Facts §5.364 Civil Rights/Discrimination Cases §5.365 Trial Practice §5.370 Trial Tactics §5.371 Proponent Generally §5.372 Opponent Generally §5.373 Adoptive Admissions §5.400 Relevant Cases §5.410 In General §5.411 Must Be Offered by Opposing Party §5.412 No Requirement Statement Be Against Party’s Interest §5.413 Subject of Admissions §5.414 Personal Knowledge Not Required §5.415 Party-Declarant Can Contradict Admission §5.420 Personal Admissions §5.421 Generally §5.422 Admissions in Same Proceeding §5.423 Admission in Other Proceeding §5.424 Guilty Plea/Allocution §5.425 Judicial Admissions/Judicial Estoppel §5.426 Representative Capacity §5.430 Adoptive Admissions §5.431 In General §5.432 Words or Conduct §5.433 Possession of Documents §5.434 Silence §5.440 Statements by Agent §5.441 Proof of Agency §5.442 Statements by Attorney §5.443 Employee as Agent of Superior §5.450 Vicarious Admissions of Employee §5.451 Foundation Required §5.452 Personal Knowledge §5.453 Employment Relationship Found §5.454 Post-Employment Statement §5.460 Civil Rights/Discrimination Cases §5.500 State Rules Chapter 6 Statements of Coconspirators [Rule 801(d)(2)(E)] Section §6.100 Rule (801)(d)(2)(E): Statements Which Are Not Hearsay: Statements of Coconspirators §6.200 Effect §6.300 Discussion §6.310 Basis §6.320 Operation in Civil and Criminal Cases §6.330 Foundation §6.331 Requirements §6.332 Standard of Proof: Preponderance of Evidence §6.333 Existence of Conspiracy §6.334 Declarant Must Have Been Participant When Statement Made §6.335 Proof of Defendant’s Participation §6.336 Statement During Existence of Conspiracy §6.337 Withdrawal of Declarant or Defendant §6.338 Statement in Furtherance of Conspiracy §6.340 Conditional Admission §6.341 Procedure Generally §6.342 Dangers §6.350 Trial Tactics §6.351 Urge Court to Exclude Statements Without Adequate Prior Showing §6.352 Be Cautious About Limiting Instructions §6.400 Relevant Cases §6.410 Foundation §6.411 Requirements §6.412 Existence of Conspiracy §6.413 Participation §6.414 Statements in Furtherance of Conspiracy §6.420 Procedure §6.421 Preliminary Determination of Fact §6.422 Conditional Admission §6.423 Preponderance of the Evidence to Establish Admissibility §6.424 Use of Statement to Show Foundation §6.430 Conspiracy Not Charged §6.440 Declarant’s Identity Unknown §6.450 When Statement Made §6.451 During Existence of Conspiracy §6.452 Before Entering Conspiracy §6.453 By Coconspirator After Arrest §6.460 Withdrawal From Conspiracy §6.470 Admission in Civil Cases §6.500 State Rules Chapter 7 Hearsay Exceptions: Availability of Declarant Immaterial Section §7.100 Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial §7.200 Hearsay Exceptions Generally §7.210 Governing Rules §7.220 Purpose of Allowing Exceptions §7.230 Trustworthiness §7.231 Judge Does Not Determine §7.232 Exceptions §7.240 Trial Practice Chapter 8 Present Sense Impressions and Excited Utterances [Rules 803(1), (2)] Section §8.100 Present Sense Impression §8.110 Rule 803(1): Present Sense Impression §8.120 Effect §8.130 Basis §8.140 Discussion §8.141 Necessary Factual Foundation §8.142 Startling or Momentous Nature of Event §8.143 Comparison With Excited Utterance §8.144 Statement Immediately After Perception §8.145 Statement Must Describe or Explain Event or Condition §8.146 Corroboration §8.147 Res Gestae §8.148 Trial Practice §8.150 Relevant Cases §8.151 Statement Contemporaneous With Event §8.152 Statement After Event §8.153 Examples §8.160 State Rules §8.200 Excited Utterances §8.210 Rule 803(2): Excited Utterance §8.220 Effect §8.230 Basis §8.240 Discussion §8.241 Foundation §8.242 Comparison With Present Sense Impression §8.243 Startling Events §8.244 Declarant Must Have Perceived the Event §8.245 Identification of Declarant §8.246 Declarant Under Influence of Event §8.247 Lapse of Time §8.248 Excited Utterances in Criminal Cases §8.249 Trial Practice §8.250 Relevant Cases §8.251 Startling Event §8.252 Time Lapse §8.253 Declarant’s Perception of Event |
