803: Declarant's availability immaterial Flashcards
803(1)?
Present sense impression
803(2)?
Excited utterance
Present sense impression is
(1) a statement describing or explaining an event or condition, and
(2) made while or immediately after the declarant perceived it.
T/F: Present sense impression may include an analysis.
FALSE.
No analysis necessary.
Excited utterance is
(1) a statement relating to a startling event or condition, and
(2) made while the declarant was under the stress of excitement that it caused.
T/F: Excited utterance may include an analysis.
TRUE.
T/F: Excited utterance is subjective.
TRUE
speaking while excited during a starting event/condition is subjective.
803(3)?
State of mind
State of mind can be shown in
A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health).
Under 803(3), the statement cannot include a
memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
T/F: a then-existing statement is admissible if its present tense
TRUE.
State of mind can also include?
motive, intent or plan.
“I am bored because my favorite show did not come on tonight.”
Admissible or Inadmissible? Why.
Not admissible after the word “ “because”
“I am bored” is an emotion and is admissible as a mental feeling.
“I am hungry.”
Admissible or Inadmissible?
Why.
Admissible because it describes a physical condition.
803(4)?
Medical diagnosis or treatment
To bring a statement in under 803(4), the statement must? [3]
- The statement must be made for a medical diagnosis or treatment.
- The statement must be reasonably pertinent to diagnosis or treatment.
3, The statement must describe (a) medical history, (b) past or present symptoms or sensations, or (c) the inception of the condition or its general cause.
T/F: A statement made for medical diagnosis or treatment can only be made to a doctor or specialist.
FALSE.
Can be made to someone outside of the medical field if for purpose of diagnosis or treatment.
T/F: A statement identifying the abuser is not allowed.
Depends.
In domestic or child abuse cases, some courts allow the statement to prove identity of abuser.
803(5)?
Recorded recollection
6 elements for recorded recollection
- The out of court statement must appear in a record
- Witness must have made or adopt the record.
- Witness must once had personal knowledge of the information contained in the record
- Witness must have made or adopted the record at the time it was fresh in their memory
- Witness must testify at the time they made or adopted the record, the information was accurate.
- Now, the witness cannot no longer recall the information contained in the record
T/F: Recorded recollection can only be used when declarant is a witness
TRUE
T/F: The witness can keep + read the record on the stand for recorded recollection
TRUE
T/F: The party offering the evidence may offer the record as an exhibit [recorded recollection]
FALSE.
The opposing party offers as an exhibit
803(6)?
Business records
A record is ___ _____ of information that an _________ documents.
any kind
organization
For a business record, the information must be recorded by a person with _____ ______ or a person who ______ the information from ________ ?
[803(6)(a)]
personal knowledge
received
someone inside the organization with personal knowledge
T/F: The business record can be made at any time.
FALSE.
The business record must be made “at or near the time: of the act, event, condition, opinion, or diagnosis.
a reasonable time
A business record is kept in the ____ of ______ _____ _____ when the entity ____ on the document as part of its _____ ____.
[803(6)(b)]
course
regularly conducted activity
relies
regular business
Making the business record was a ____ ____ __ ____ ____.
[803(6)(c)]
regular practice of that activity
record is made on a regular or routine basis
T/F: A business record made solely for litigation can still satisfy the “regular practice” requirement under 803(6)(c).
FALSE.
The business must be introduced by a ____ or _____ ____ or by a _____ under 902(11) or (12).
[803(6)(d)].
custodian
qualified witness
certification
T/F: The qualified witness introducing the business record has to be the person who made it.
FALSE.
Witness has to have knowledge of the organization’s recordkeeping practices.
The burden is on the _____ of the business record to show the record lacks ________. [803(6)(e)].
opponent
trustworthiness
803(8) ?
Public records
To qualify as a public record, the document can come from ?
[803(8)(a)]
Government agencies
private organizations
State/federal law enforcement agencies
T/F: If the record is found to be both a business record + a public record, only 803(8) requirements have to be met.
FALSE.
Both 803(6) - business records AND 803(8) - public records requirements have to be satisfied
T/F: Public records of office activities are admissible under 803(8)(a)(i)?
TRUE.
Good job!
Observations pursuant to the agency’s duty are generally ____ but matters observed by law enforcement against criminal defendants are _____ unless they are _____.
[803(8)(a)(ii)]
admissible
not admissible
ministerial (neutral)
Factual findings from a legally authorized investigation in civil cases + in criminal cases when the government is a party are ____ under 803(8)(a)(iii).
admissible
Public records are ___ _____ if the result from an investigation against a criminal defendant.
not admissible
Records are ____ _____ if they lack _______.
[803(8)(b)]
not admissible
trustworthiness
