8: Hearsay exceptions Flashcards
Present sense impression
A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.
A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.
Excited utterance
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay.
Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event (i.e., the declarant can be a bystander).
Statement of mental, emotional, or physical condition
A statement of a declarant’s then-existing physical, mental, or emotional condition is admissible to prove the existence of that condition.
A statement of intent can be used to prove action in comformity with that intent.
Statement made for medical diagnosis or treatment
A statement by the declarant describing her medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis.
The rule encompasses:
(1) Statements made to a person other than a physician—e.g., an emergency dispatcher;
(2) Statements made to a non-treating physician;
(3) Statements made by a person other than the patient.
Residual exception
A hearsay statement may be admissible under this exception if:
i) The statement has equivalent circumstantial guarantees of trustworthiness;
ii) It is offered as evidence of a material fact;
iii) It is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain; and
iv) Admission will best serve the purposes of the Federal Rules and the interests of justice.
The proponent must give an adverse party reasonable notice before the trial or hearing of the intent to offer the statement as well as its particulars, including the declarant’s name and address.
Past recollection recorded
When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:
- The record concerns a matter about which the witness once had knowledge;
- The record was prepared or adopted by the witness when the matter was fresh;
- The record accurately reflects the witness’s knowledge; and
- The witness testifies he has insufficient memory of the event to testify fully and accurately (even after consulting the writing while on the stand).
The witness may read it to the jury, but it is not provided to the jury.
The opposing party, however, is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence.
A writing used to refresh a witness’s memory is admissible for substantive purposes only if it satisfies the other restrictions on admissibility, such as the hearsay rule.
Learned treatises exception
A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if:
(1) an expert witness relied on the statement during direct examination or it was called to the expert’s attention on cross-examination; and
(2) the publication is established as a reliable authority by admission or testimony of the expert witness, by another expert’s testimony, or by judicial notice.
If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.
Judgment of prior conviction exception
Evidence of a final judgment of conviction is not excluded as hearsay if:
(a) The judgment was entered after a trial or guilty plea, but not a plea of no contest (i.e., nolo contendere);
(b) The conviction was for a crime punishable by death or imprisonment for more than one year; and
(c) The evidence is offered to prove any fact essential to sustain the judgment.
If the prosecutor in a criminal case offers evidence of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the defendant.
Reputation exception
There is a hearsay exception for the reputation or character of a person, i.e., for the narrow circumstances when reputation or character evidence is admissible.
Interest in property
FRE 803(14) establishes a hearsay exception for the record of a document
purporting to establish or affect an interest in property
as proof of the content of the original recorded document
and its execution and delivery by each person by whom it purports to have been executed if:
(1) the record is a record of a public office; and
(2) an applicable statute authorizes the recording of documents of that kind in that office.
