6. Hearsay Flashcards
What is the Hillmon Exception?
A statement may not be hearsay if offered to show that the party intended to go to a place with others.
What is the Basic Rule of Hearsay?
Evidence offered in hearsay form is NOT admissible unless it falls within an exception.
What is the Basic Rule for Hearsay as Substantive Evidence?
If evidence is admissible as a hearsay exception, it may be admissible as substantive evidence.
What are the four elements of Hearsay?
- A statement
- By a human declarant
- Other than one made while testifying at trial
- Offered to prove the truth of the matter asserted.
What is a statement?
A statement is either an intentional oral or written assertion or intentionally assertive conduct.
Who must make the statement for it to be considered hearsay?
The statement must be made by a human declarant.
What does ‘other than made while testifying at trial’ imply?
Beware of out-of-court declarants testifying in court; their statements made outside may still be hearsay.
What is the purpose of proving the truth of the matter asserted?
To determine if the proponent needs the substance of the statement to be believed for relevance.
What is the rule for Non-Hearsay?
These are out-of-court statements not offered for the truth of the matter asserted, commonly admissible for a limited purpose.
What does the mnemonic ‘C E.L.V.I.S.’ stand for regarding Non-Hearsay?
- C: Statement of Capacity
- E: Effect on the Listener
- L: Legally operative facts
- V: Verbal Acts
- I: Impeachment
- S: State of Mind - Circumstantially.
What is Rule 801(d)(1)(A)-Prior Inconsistent Statement?
Prior inconsistent statements are non-hearsay and admissible as substantive evidence if:
- the declarant testifies at trial and is subject to cross-examination concerning the prior inconsistent statement;
and - the prior statement was given under oath subject to penalty of perjury at a prior trial, hearing, or deposition.
What is not considered a proceeding under Rule 801(d)(1)(A)?
- Interrogations conducted by police and other investigators are not proceedings;
- If a witness makes a formal statement under oath to the police, that statement is not admissible under Rule 801(d)(1)(A).
What is Rule 801(d)(1)(B)-Prior Consistent Statement?
Under Rule 801(d)(1)(B), prior consistent statements, regardless of whether made under oath, are non-hearsay if:
- the declarant testifies at trial and is subject to cross-examination about the prior consistent statement;
- the prior statement is consistent with the declarant’s testimony and is offered:
a. to rebut charge against the declarant of recent fabrication or improper influence or motive; or
b. help rehabilitate the declarant’s credibility as a witness when attacked on another ground.
What is Rule 801(d)(1)(C)-Prior Identification?
Under Rule 801(d)(1)(C), A statement is not hearsay when the declarant testifies at trial and is subject to cross-examination about a prior statement identifying a person as someone the declarant perceived earlier.
This is true even if the witness currently lacks memory and cannot testify as to the basis of the prior identification.
Does Rule 801(d)(1)(C) require that a prior identification be made under oath or at a formal proceeding?
No, this rule does not require that a prior identification be made under oath or at a formal proceeding to be admissible.
Does Rule 801(d)(1)(C) require that there was an opportunity to cross-examine the witness at the time of the original identification?
No, this rule does not require that there was an opportunity to cross-examine the witness at the time of the original identification to be admissible.
What are the five types of statements by a party opponent under Rule 801(d)(2)?
Under Rule 801(d)(2), a statement is not hearsay when the statement is offered against an opposing party and the statement is:
- Made by a named party in an individual or representative capacity;
- One the party manifested that it adopted or believed to be true;(The defendant does not need to verbally acknowledge the statement; the mere acceptance and some action on the part of the defendant will act as an adoption of the statement)
- Made by a person whom the party authorized to make a statement on the subject;
- Made by the party’s agent or employee on a matter within the scope of that relationship and while it existed(vicarious admission-Statements by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal); or
- Made by the party co-conspirator DURING and IN FURTHERANCE of the conspiracy.
What is Rule 803(1)-Present Sense Impression?
A present sense impression is a statement describing or explaining an event made while or immediately after the declarant perceived it.
What is Rule 803(2)-Excited Utterance?
Hearsay statement is admissible if made while the declarant was under the stress of excitement caused by a startling event.
The declaration must concern the immediate facts of the startling occurrence.
What is Rule 803(3)-Then-Existing Mental, Physical, or Emotional Condition?
A statement of the declarant’s then-existing mental, physical, or emotional condition is admissible if relevant to show state of mind or explain future behavior.
What statements are not admissible under Rule 803(3)?
Statements of past sensation, memory, or belief are NOT admissible.
What is Rule 803(4)-Statement Made for Medical Diagnosis or Treatment?
Under Rule 803(4), a declarant’s statement is admissible if:
- made for—and is reasonably pertinent to—medical diagnosis or treatment; AND
- describes medical history; past or present symptoms or sensations; their inception; or their general cause.
Under Rule 803(4), the following statements are not admissible:
- Statements admitting or assessing fault; and
- Statements made by the physician or health care provider to the patient or patient’s agent.
What is Rule 803(5)-Past Recollection Record?
Under FRE 803(5), an out-of-court statement may be admissible as a recorded recollection exception to the hearsay rule when the witness:
(i) made a record;
(ii) based on firsthand knowledge;
(iii) when the matter was fresh in the witness’s memory which accurately reflected the witness’s knowledge; and
(iv) the witness has insufficient recollection at trial.
What is Rule 803(6)-Business Records?
Under Rule 803(6), A record of a business-related act, event, condition, opinion, or diagnosis is admissible if:
- Record was made at or near the time by of the event (i.e., contemporaneous);
- by a person with knowledge;
- kept as a regular practice in the course of a regularly conducted business activity; and
- There is no indication of a lack of trustworthiness.
What is not admissible under Rule 803(6)?
- Such record is not kept in the regular course of business;
- Such record is not a regular practice to make that kind of record;
- the source of information or the method of the circumstances of the preparation of the record indicate a lack of trustworthiness;
- Records were made by outsiders not part of the institution in question;
- no personal knowledge/observation of the record;
- Personal diaries, calendars, or bank records;
- the person who supplied the information was not an employee of the business and had no business duty to report the information;
- accident reports, especially ones made in anticipation of litigation; or
- Circumstances of preparation make the report self-serving and untrustworthy(e.g., strong interest to write up the reports to blame customer rather than the railroad).
