(5) Evidence: Hearsay Flashcards
Definition & Rule:
Hearsay
Out of court statement offered to prove the truth of the matter asserted.
Hearsay statements are inadmissible unless they fall within an exception.
Is evidence generated by machines or animals Hearsay?
NO, the maker of the statement (declarant) must be a person. Evidence generated by machines or animals are not hearsay.
What is a “statement”, for Hearsay purposes?
A statement is a persons oral or written assertion or nonverbal conduct intended to be an assertion. An assertion is an act that is intended to communicate.
Multiple Hearsay
A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception.
What are the Hearsay Exceptions?
- Excited Utterance / Spontaneous Statement (CA)
- Present Sense Impression / Contemporaneous Statement (CA)
- Business Record
- State of Mind
- Statement of Medical Diagnosis or Treatment
- Past Recollection Recorded
- Government/Public Record
- Catch-All Exception (FRE only)
- Absence of Business Record or Public Record (MBE)
- Learned Treatise (MBE)
- Ancient Document (MBE)
Excited Utterance (FRE)/Spontaneous Statement (CA)
Hearsay Exceptions
An excited utterance is an exception to hearsay. An excited utterance is a statement (1) relating to a startling event or condition; (2) made while the declarant was under the stress of excitement that the event/condition caused. There can be a slight delay between the event and statement.
FRE vs CA rule:
Present Sense Impression (FRE)/ Contemporaneous Statement (CA)
Hearsay Exceptions
A present sense impression is an exception to the hearsay rule.
FRE Rule: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived.
CA Rule: Only applies when the statement is (1) offered to explain, qualify or make understandable conduct of the declarant; AND (2) was made while the declarant was engaged in such conduct. [Note: cant be made after the conduct occurred.]
Rule & CA Differences:
Business Record
Hearsay Exceptions
Business records are an exception to the hearsay rule and admissible if (1) a record of events, condition, opinions, or diagnoses; (2) kept in the regular course of business; (3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter; (5) is the regular practice of the business to make such a record; AND (6) the opponent party does not show that the record was made under circumstances indicating a lack of trustworthiness.
In CA the business record exception does not include records of opinions or diagnosis only applies to records of events or conditions.
Additionally, the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.
Is the author of the business record the only acceptable witness?
Hearsay Exceptions - Business Records
NO, the witness who lays the foundation for the business record does not need to be the author of the record and does not need to attest to its accuracy.
General Rule:
State of Mind
Hearsay Exceptions
A statement of the declarants present intent, motive or plan, can be used to prove conduct in conformity with that state of mind.
State of Mind - Conditions Rule
Hearsay Exceptions
A statement of the declarants bodily health, pain or mental feeling at that time can be used to prove the existence of that condition but not its cause.
Statement of Mind - Memory/Belief Rule
Hearsay Exceptions
Statements of memory or belief to prove a fact remembered or believed is NOT admissible unless it relates to the validity or terms of a declarants will.
FRE vs CA rules:
Statement for Medical Diagnosis or Treatment
Hearsay Exceptions
A statement is not hearsay when (1) made for a reasonably pertinent medial diagnosis or treatment; AND (2) describes medical history or symptoms.
In CA statements concerning a persons past physical state are admissible only if they were made to medical personnel for the diagnosis or treatment of child-abuse/neglect victim less than 12 years of age.
AKA: statements must be relevant to medical diagnosis or treatment
Rule & Admitting the record:
Past Recollection Recorded
Hearsay Exceptions
A past recollection recorded is an exception to hearsay and admissible if: (1) the record is on a matter the witness once had personal knowledge of; (2) the writing was made or adopted by the witness; (3) the writing was made while the events were still fresh in the mind of the witness; (4) the writing accurately reflects the witness’s knowledge; AND (5) the witness no longer remembers the event.
if admitted the record may be read into evidence unless the record is offered by an adverse party then it may only be received as an exhibit.
Rule & Exception (to the exception):
Government/Public Record (FRE)
Hearsay Exceptions
The following records are admissible of a public office or agency that set out (1) the activities of the office or agency; (2) observations of someone in accordance with their duties by law (except for police reports in criminal cases); or (3) factual findings of a legal investigations when offered in a civil case or against the government in a criminal case.
Exception: If the opposing party can show the record was made under circumstances indicating a lack of trustworthiness the record will not be admitted
Government/Public Records (CA)
Hearsay Exceptions
Government or public records are admissible as long as the writing was (1) made by and within the scope of duty of a public employee; (2) made at or near the time of the act, condition or event; AND (3) the record was made under circumstances indicating trustworthiness.
This exception applies to civil and criminal cases though there may be confrontation clause issues in criminal cases.
Rule:
Catch-All Exception (FRE Only)
Hearsay Exceptions
A hearsay statement is not excluded when the statement (1) has equivalent circumstantial guarantees of trustworthiness; (2) is offered as evidence of a material fact; (3) is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; AND (4) admitting it will best serve the interests of justice.
Catch All Exception (FRE only) - Requirements to admit
Hearsay Exceptions
The party must give the adverse party reasonable notice of their intent to offer the statement and its particulars including the declarants name and address so the adverse party has a fair opportunity to oppose its introduction.
