Evidence 2 Robbins Flashcards
Definition of hearsay
Hearsay is an out of court statement offered to prove the truth of the matter asserted.
What is considered a ‘statement’ for hearsay?
Verbal statements, acts, written statements, adoptive assertions
When an out of court statement is offered to prove the declarant’s state of mind…
If offered to prove mental state, then it is not hearsay. Ex. outside statement about an affair to prove declarant had motive/anger/etc.
If a statement if offered to show the declarant’s belief of a fact (ex. the phone answered to take bets) then it is…
An implied assertion. Implied assertions are not hearsay.
If a fact has otherwise been proven, what is an OOC statement to prove one had knowledge of the fact?
An OOC statement to prove knowledge of an otherwise proven fact is not hearsay.
When is a declarant witness OOC inconsistent statement not hearsay?
When a declarant witness inconsistent statement was given under oath, the OOC inconsistent statement is not hearsay.
When is a declarant witness OOC consistent statement not hearsay?
When given to rebut allegation of fabrication or improper motive, if the statement was made before the motive existed.
It is also admissible as non-hearsay if offered to rehabilitate an attacked witness.
What is required for any declarant witness OOC statement to be admissible?
The declarant witness must testify under oath and be subject to adverse questioning.
When are OOC statements of identification admissible?
A declarant witness prior OOC statement about identification that was perceived prior is admissible as non-hearsay. Also must be subject to cross.
What is considered a statement by opposing party?
A statement made by the opposing party, his representative, agent or employee in the scope of the relationship, or a co-conspirator during and in the furtherance of the conspiracy.
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What is an adopted admission?
When a party opponent has heard and understood a statement, and acted to adopt it without emotional or physical inhibition.
When someone makes a statement simultaneously after an event…
Present Sense Impression
When someone makes a statement while under the stress or excitement of an event…
Excited utterance.
It must be a sufficiently startling event. The more significant the event, the longer afterwards a statement can be an excited utterance. A person’s appearance, behavior, or condition can show a state of excitement.
What is the Hillman doctrine?
When a person makes an OOC statement about an intent to do a future act, it can be admissible to show the person did the future act. This is a Then Existing State of Mind.
The statement must be about present feelings or future intent, not of memory or belief.
A statement about a emotional, sensory, or physical condition (such as current pain) is a _______ exception.
Then existing state of mind
What qualifies as a statement for medical diagnosis or treatment?
Statements made to a medical professional that are reasonably pertinent to treatment or diagnosis and would be reasonably relied upon by a medical professional.
When a witness once had knowledge of a matter but can not recall for testimony….
A recorded recollection may be admissible. The record would have to been adopted when fresh in ind and accurately reflect knowledge at the time recorded.
When may a past recorded recollection be admitted into evidence?
When a recorded recollection is offered by the adverse (non-introducing) party, it may be admitted into evidence. Otherwise the record may only be read into evidence.
What qualifies as a Business Record?
A record made, in the ordinary course of business and not in anticipation of litigation, by one with knowledge thereof and a part of the organization, at or near the time of the event. A custodian or qualified witness must show the foundation for the record.
When a business record is absent, it may show…
That an event did not occur or exist if the record would normally be kept and the opponent does not show a lack of trustworthiness.
Absence of a business record must have the same foundation as a business record admission.
When are public records admissible?
Public records are admissible if the record shows the activities of that office or a matter the office has a legal duty to report. Law enforcement reports are excluded for criminal cases.
What other records may be admissible under a hearsay exception?
Religious records of family or personal history;
Ceremonial certificates;
Family records (bibles, jewelry inscriptions);
Documents effecting property interest;
Ancient documents (authenticated and pre-1998);
Commercial publications;
Learned treatises (if established as reliable authority)
What makes a declarant ‘unavailable’?
A declarant may be considered unavailable if: A privileged is invoked; They refuse to testify; Testifies to no memory; Death or illness prevents testimony; Absent and unable to reasonably locate.
When is former testimony admissible?
When the declarant is unavailable and the statements were given at a trial, hearing, or lawful deposition and the adverse party had an opportunity to cross.
In a civil trial, the declarant can be a predecessor in interest.
The delcarant must be unavailable.
What is a Dying Declaration?
A dying declaration is an admissible hearsay statement made when:
The declarant believed death was imminent and was made about the cause or circumstance of the believed death.
The delcarant must be unavailable.
When is a dying declaration not admissible?
A dying declaration is not admissible in a criminal case unless it is a prosecution for homicide.
What is a Statement Against Interest?
A statement made contrary to the declarant’s proprietary or pecuniary interest, OR
that tends to subject the declarant to civil or criminal liability, OR
would invalidate a lawful claim against another.
The delcarant must be unavailable.
What types of interest might a declarant be speaking against?
Financial, Property right, a claim or defense, or civil or criminal liability.
If a criminal defendant speaks against his criminal interest, what else must be shown to be admissible under Statement Against Interest exception?
There must be corroborating circumstances to indicate trustworthiness.
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What causes a forfeiture of right in hearsay?
A forfeiture of right occurs when the party against whom the statement is offered caused the unavailability of the declarant. This is a complete hearsay waiver.
What is required under the Residual Exception to hearsay?
To apply the residual exception, the court must find:
Trustworthiness,
Notice to other party,
Necessity,
Materiality,
The purpose of rules and justice will be served.
What is the Confrontation Clause?
The 6th Amendment provides the right to be “confronted with the witnesses against him” in a criminal case.
What is the Crawford standard?
The Crawford standard sets when evidence violates the Confrontation Clause. If a statement comes from an unavailable witness and is testimonial in nature, the Confrontation Clause bars introduction.
What is a ‘testimonial’ statement?
Testimonial statements are statements that lead the declarant to reasonably believe the statement made would be available for use at a later trial.
How does a court decide if statements are testimonial for purposes of Confrontation/Crawford?
The Primary Purpose test establishes if statements are testimonial. A statement made to establish or prove facts potentially relevant to later prosecution is testimonial.
What is a non-testimonial statement?
A non-testimonial statement is one made with the primary purpose to enable the police to meet an ongoing emergency. This is generally describing ongoing events and not past events.
How are OOC statements by unavailable declarants evaluated?
First the OOC statement must meet an 804 hearsay exception. If the statement falls within an 804 exception, evaluate if the statement is testimonial for Confrontation purposes.
When is an OOC testimonial statement not violative of the Confrontation Clause?
If the defendant had a prior opportunity to cross exam the declarant, the confrontation clause does not bar the admission of the statement. (Ex. deposition, previous testimony, etc.)
How is the right of confrontation effected by an 804(b)(6) forfeiture of right?
Causing the unavailability of a declarant forfeits both the right to hearsay objects and the right to confrontation.
When a witness testifies to DNA data, is confrontation violated?
An expert may rely on raw data even if that raw data was developed by others, but can not act as a surrogate for that information. The comparison and/or compilation of the evidence presented must come from the testifying witness.
What is the purpose of Authentication
Authentication serves to show the witness has knowledge sufficient to support the object is what it is claimed to be.
What is the result if the chain of custody is interrupted?
An interrupted chain of custody of an evidentiary item does not necessarily negate authenticity, rather the jury may consider if it discredits the weight of the evidence.
What is the primary way to authenticate an object?
When the witness has personal knowledge that the item is a Fair and Accurate Representation of what is portrays.
What is required for a lay witness to testify to handwriting?
A lay witness must have been familiar with the handwriting of a person prior to litigation in order to testify that the handwriting is in fact that person’s.
What is required for an expert to testify to handwriting?
An expert may make a comparison of handwriting when the sample is authenticated.
When can a witness give testimony about someone’s voice?
When the witness has heard the voice at any time.
How can a telephone conversation be authenticated?
When a call was made to a particular person and that person answered the phone, or when made to a particular business and was reasonably related to business reasonably transacted over the phone.
How are public records authenticated?
Public record may be authenticated when they were filed or recorded in a public office or from an office where records of the kind are normally kept.
What are the 3 steps to authenticate ancient documents?
Ancient documents must be:
In a condition that creates no suspicion, AND
Found in a place where it would be expected, AND
At least 20 years old.
What is the effect of describing a process or system and showing that it produces accurate results?
This can authenticate items from that same system.
When introducing photographs, what must the witness establish?
The witness must have had knowledge of the items photographed and the picture is a fair and accurate representation of what it is said to be.
How is video authenticated?
To admit video evidence, one must show that the video process is reliable and working properly and testify if he reviewed the video and if it had been altered.
What is demonstrative evidence?
Demonstrative evidence is a “mere visual aid” of no probative value, intended to help the jury understand testimony.
What are self-authenticating documents?
Some documents do not require extrinsic evidence to authenticate by their nature. These are often public documents or publications that are signed and or sealed or certified.
