6) Hearsay Flashcards
policy: why is hearsay out?
no opportunity to cross examine –> need to be able to challenge D’s perception, memory, sincerity, ability to relate
hearsay: def 801
out of court st, [other than one made by the declarant while testifying at trial], offered to prove the truth of the matter asserted
declarant: def
the person making the st (mouthpiece)
st: def 801(a)
either:
1) oral or written assertion intending communication, or
2) assertive conduct (nonverbal, but intended as an assertion)
out of court declarant comes to court to testify
doesn’t matter –> problem is we had no way to test those words/etc at the time of utterance
assertive conduct: def
conduct intended to communicate as a substitute for words
assertive conduct: yes exs
pointing
nod/shake head
sketch of criminal
non-assertive conduct: exs
demeanor
limp/gait
HOW it was said (slurred speech)
animals + machines
NOT statements!
ojo w parrot: not a statement so can’t be hearsay but inadmissible bc irrelevant
evidence not hearsay bc not offered for its truth: kinds
1) effect on listener
2) verbal acts
effect on listener: kinds
notice of dangerous conditions
motive / self defense
verbal acts: def
words themselves have independent legal significance. (truth of st is irrelevant – what we’re proving is just that words were uttered)
verbal acts: exs
1) transactional words (k, deed, will)
2) actual words of defamation
hearsay exemptions under 801(d): use
YES admissible for truth
hearsay exemptions under 801(d): list
1) statement by party opponent
2) prior sts (subtypes)
statement by party opponent: kinds
1) direct st by party
2) adoptive admission (conduct or silence)
3) authorized admission
4) vicarious admission
5) admission by co-conspirator
exemption: party opponent: direct st by party:
st by a party, offered against him by his opponent. Can be fact or opinion, no personal knowledge needed, dnn to be against interest when made
exemption: party opponent: admission by silence
requires that RP would have denied the st (cheating on wife)
no admissions by silence post Miranda
exemption: party opponent: adoptive admission
need sufficient evidence to show that party heard, understood, and adopted it as her own
exemption: party opponent: authorized admission
st by party’s agent or representative
exemption: party opponent: employee admission, aka
vicarious admission
exemption: party opponent: def
st of party’s ee offered against party (who is ER)
must be mad eduring existence of ee/er rship
concerning a matter w/in the scope of employment
exemption: party opponent: co-conspirator’s sts
sts of co-conspirators can be used against all other co-conspirators (reqs)
ok no charge for conspiracy (but must prove existence of conspiracy to court)
ok not aware conspiracy exists
exemption: party opponent: co-conspirators sts: reqs
(preponderance to judge)
1) there was a conspiracy
2) declarant was member of conspiracy
3) st was made in furtherance of conspiracy (moved the crim combination forward)
4) st was made during existence of conspiracy (not after)
exemption: prior statements; reqs common to all (+ result)
1) declarant must testify at trial
2) declarant must be available + subject to cross-exam re the st
(result: no confrontaiton clause problems)
exemption: prior statements; kinds
1) prior inconsistent
2) prior consistent
3) prior identification
exemption: prior statements; prior inconsistent: def
prior inconsistent st can be offered for truth if:
1) sworn
exemption: prior statements; prior inconsistent: contrast 613 vs 801
[contrast 613 PINS: not sworn, but only ok for limited purpose of impeachment
801: yes sworn + for truth
exemption: prior statements; prior inconsistent: “sworn” def
GJ: yes
prelim hg: yes
NOT notarized affidavit
exemption: prior statements; prior consistent 801(d)(1)(B): when
1) to rehabilitate wit AFTER an inference of recent fabrication has been made [st must predate the motive to lie], or
2) to rehabilitate declarant’s credibility as a wit when attacked on another ground
exemption: prior statements; prior ID 801(d)(1)(C): def
prior st of identificaiton of a person made after perceiving him can be admissible. (policy–courtroom IDs not as good)
hearsay rule: 802
hearsay is inadmissible except as provided by FRE (excpetions) or other laws
hearsay exceptions 803: generalc ategories
1) truth producing (present sense impression, excited utterance, mental/phys condition, med tx)
2) records (business, public, ancient docs)
3) learned treatise
4) reputation
5) judges
803 exceptions: present sense impression: def 803(1)
st made by declarant (oral or written)
1) describing or explaining effect or condition
2) made while or immediately after perceiving it (close in time)
IMMEDIATE
803 exceptions: present sense impression: NOT required
declarant dnn be known or avail
dnn be excited utterance
803 exceptions: excited utterance: 803(2): def
st related to a startlign event
2) made while declarant was under the stress of excitement caused by the event or condition
does NOT need to be immediate
803 exceptions: then-existing mental, emo, or phys condition 803(3): def
1) st of declarant’s then-existing (PRESENT NOT PAST: no memory/belief)
2) physical, emo, or mental condition
3) IF relevant to show declarant’s state of mind (can include prospective intent, plan, phys/emo state, etc)
803 exceptions: then-existing mental, emo, or phys condition 803(3): exception
if st of memory relates to execution, revocation, identification, or terms of declarant’s will, then yes admissible
803 exceptions: st for purpose of med dx or tx: 803(4)
1) st made to any med pro (even family member)
2) for purpose of med dx/tx – inc med hx, pain, or the cause – must be useful for dx/tx
803 exceptions: st for purpose of med dx or tx: 803(4): exception
NOT admitting or assessing fault (but sometimes can sever that part)
803 exceptions: past recollection recorded 803(5) – vs 612 + result
first must attempt refreshing under 612 (leading q or writing) – now lacks current memory f event
NOW BOTH SIDES CAN USE FOR ITS TRUTH
803 exceptions: past recollection recorded 803(5) reqs
1) writing/record read into evidence
2) writing must have been made while matter was fresh in wit’s mind (ok cooperative report)
3) wit must testify that writing accurately reflects wit’s prior knowledge
803 exceptions: past recollection recorded 803(5) : is the writing an exhibit?
no (just read into evidence) – UNLESS offered by opponent
803 exceptions: past recollection recorded 803(5) rights of adverse party
1) inspect the writing
2) cross-examine w it
3) show it to jury for comparison
4) introduce relevant parts into evidence
803 exceptions: business records exception 803(6)
1) made in regular course of BUSINESS (not personal diary/cal/etc)
2) at or near the time
3) by a person w knowledge
4) provided that does not lack trustworthiness
803 exceptions: business records exception 803(6) process of admitting
need foundation witness (custodian or similar) –dnn personal knowledge
803 exceptions: business records exception 803(6): EXCEPTION
record may not be made solely in anticipation of litigation
police reports
- -accident report: better public records 803(8), not business record – prepared in antiicipation of litigation
- -crim: police reports inadmissible vs D(lack of trustwrothiness) [but D can offer]
803 exceptions: absence of entry in records 803(7)
evidence that matter is NOT included in records can be admitted to prove non-occurrence of the event
803 exceptions: absence of entry in records 803(7) process reqs
wit must testify:
1) familiar w the records
2) dilligently searched
3) found no record of the event
803 exceptions: public records + reports 803(8)
- -prepared pursuant to duty imposed by law
- -public offices or agencies setting forth activity of the office/agency OR duty imposed by law to report
- -does NOT need to be at/near the time
- -trustworthy (inadmissible if way prepared shows lack of trustworthiness)
- -ok prepared in anticipation of lit if trustworthy (but see spl rules re police reports)
803 exceptions: public records + reports 803(8) admissions procedure
if certified copy, self-authenticating
803 exceptions: records of vital statistics 803(9)
admissible if: report made to public office, pursuant to reqs of law
803 exceptions: minor record ones
1) records of religious organizations: 803(11)
2) marriage, baptismal, similar certificates 803(12)
3) records of docs affecting an interest in property 803(14)
803 exceptions: family records 803(13)
sts re personal or family hx in family bibles, geneaology charts, family portraits, engraving on tombstones etc. (admissibility vs weight to be given)
803 exceptions: sts in ancient docs 803(16)
- -authenticity established –> must be found in a place items typically found (shoebox ok)
2) includes sts in a doc made before 1/1/98 [NOT 20 year rule–states]
803 exceptions: market reports, commercial publications 803(17)
sts of objective facts, not opinions
phone book, credit report, catalogs…
803 exceptions: learned treatises 803(18)
- -sts in treatises, textbooks, journals, periodicals, hornbooks
- -must establish authorittiveness first (ways)
- -ONLY read into evidence, not shown to jury
- -subjects: MASH
- -result: offered for truth, so can use to impeach expert
803 exceptions: learned treatises 803(18): ways to establish authoritativeness
1) judicial notice
2) expert testimony (yours or opc’s)
3) stipulation
803 exceptions: learned treatises 803(18): subject areas
Medicine Art Science History (MASH)
803 exceptions: minor exceptions re reputation
1) reputation among associates, family members re personal or family hx 803(19)
2) reputation re boundaries or general hx 803(20)
803 exceptions: reputation re ch 803(21) – rship to 404/405/608
it’s the same ch evidence, but this explains how to get it past hearsay concerns (which issue is q asking about?)
803 exceptions: judgment of previous conviction 803(22)
- -final judgments of previous convictions for felonies are admissible
- -certified copy of final judgment is needed
- -only ok re D (or for impeachment)
803 exceptions: judgment as to personal, family, or general hx or boundaries 803(23)
final judgments, if essential to a particular case, are admissible
804: hearsay exceptions that require declarant UNAVAILABLE: LIST
1) former tmony
2) dying declaration
3) st against interest
4) st of personal or fam hx
5) forfeiture by wrongdoing
804: ways to be unavailable: mnemonic
PRISM
804: ways to be unavailable: list
1) Privilege
2) Refusal
3) Incapability
4) Subpoena
5) Memory
804: ways to be unavailable: privilege
wit asserts a privilege (+ judge rules it applies)
804: ways to be unavailable: refusal
wit refuses to testify, despite court order (can include 5A)
804: ways to be unavailable: incapability: def
death OR incapacity by phys / mental illness
804: ways to be unavailable: subpoena
absence of wit, despite good faith attempt to procure wit’s attendance (usu by subpoena) – must actually do some work and look, not just send subpoena
804: ways to be unavailable: memory
wit testifies that dn remember
804: ways to be unavailable: BOP
is on proponent of the testimony to prove that declarant is unavail
804: former testimony: 804(b)(1)
may be admitted for its truth if:
- -declarant made st UNDER OATH
- -given by wit in the same, or different but related, proceeding/depo
- -party (not atty) against whom evidence is being offered must have had OPPORTUNITY + SIMILAR MOTIVE to examine wit (on direct, cross, or redirect)
- -unavail now
804: former testimony: 804(b)(1): former proceeding
same subject matter
NOT nec same COA or P
liberal application
804: former testimony: 804(b)(1): former proceeding: grand jury?
no! (no op to cross/etc)
804: dying declaration: 804(b)(2): rule
- -declarant subjectively believed death was imminent (ok dn die)
- -must be civil case OR if crim, only homicide
- -unavail
804: st against interest 804(b)(3): vs 801
801 = must be party, no personal knowledge required, dnn be against interest when made
804: dnn be party, yes need personal knowledge, yes needs to be against interest when made
804: st against interest 804(b)(3): rule
1) unavailable
2) nonparty (generally)
3) against interest when made (kinds)
4) need personal knowledge
804: st against interest 804(b)(3): kinds of interest it can be against
1) pecuniary ($)
2) proprietary (property)
3) penal (crime/jail)
804: st against interest 804(b)(3): EXCEPTION
if D is offering an exculpatory st against declarant’s penal interest in order to prove his innocence (saying someone else did it), ALSO NEED ANOTHER ELEMENT: CORROBORATION (to ensure trustwrothy)
804: st of personal or family hx 804(b)(4): pedigree exception
st re declarant’s own rship by blood, adoption, or marriage, or other similar fact of personal or family hx
2) unavail
804: forfeiture by wrongdoing 804 (b)(5)
st offered against a party who has engaged in wrongdoing that was intended ot procure the unavailability of declarant will be admissible
confrontation clause: rule
1) in crim case
2) declarant unavailable
3) “testimonial” hearsay sts inadmissible
4) UNLESS D had opportunity to cross the declarant
5) UNLESS D caused the unavailability (forfeit CC if you caused it by forfeiture or dying dec w intent prevent tmony)
confrontation clause: “testimonial” def
primary purpose of polic eirog is to prove past events relevant to a later criminal prosecution (building case)
vs: nontestimonial: primary purpose = aid police during ongoing emergency
confrontation clause: “testimonial” exs
1) public records used against D
2) sts made during police irog
3) collecting info from informant
4) prelim hg tmony
5) 911 (could go either way)
805: multiple hearsay
when 2+ ooc sts, both primary st and included st must have independent, separate basis for admissiblity–otherwise entire st is inadmissible (sometimes ok redact)
806: attacking + supporting credibility of declarant
impeaching an out of court declarant can be done the same way as a wit on the stand (bias, prior conviction, etc etc) – the evidence is admissible under this rule
residual excpetion 807
tho not otherwise overed may be exception to hearsay rule if:
1) st more probative on point than any other evidence (*)
2) notice to op
3) re a material issue (relevant)
4) interest of justice
hearsay APPROACH
1) isolate st. is it an assertion?
2) who’s declarant?
3) purpose being offered for? (truth? – if not, dnn exceptions)
4) exceptions + exemptions
(FRE has preference for 801 over 803/804)
