Evidence 41-64 Flashcards
Hearsay Exceptions
When are Prior Statements Made Under Oathadmissible?
If they are offered against a party who was present in the previous trial;
The same issues are involved; AND
The party who it is offered against had the same motive and opportunity to examine the witness in the previous trial. (In CA: the party sharing similar interests is sufficient).
*ONLY applicable is the declarant is unavailable.
Priority: Medium
Hearsay Exceptions
Under the FRE, when is a hearsay statement NOT excluded by the rule against hearsay?
When the statement:
Has equivalent circumstantial guarantees of trustworthiness;
Is offered as evidence of a material fact;
Is more probative on the point for which it is offered than any other evidence that can be obtained by reasonable means; AND
Admitting it will best serve the interests of justice.
* CA does not have the above catch-all hearsay exception.
Priority: Low
Hearsay Exceptions
What is a Present Sense Impression?
What statements does this apply to in CA?
A statement describing an event made by the declarant;
While observing the event; OR
Immediately thereafter.
In CA: This is called a Contemporaneous Statement, and applies when the statement: (1) is offered to explain, qualify, or make declarant’s conduct understandable; AND (2) was made while declarant was engaged in such conduct.
Priority: HIGH
Hearsay Exceptions
What is an Excited Utterance (or Spontaneous Statement as referred to in CA)?
A statement:
Relating to a startling event or condition,
Made while the declarant was under the stress of excitement that the event/condition caused.
Priority: HIGH
Hearsay Exceptions
Business Records are an exception to the Hearsay rule.
When are they admissible under the FRE?
If it is:
A record of events, conditions, opinions, or diagnoses;
Kept in the regular course of business;
Made at or near the time of the matter described;
Made by a person with knowledge of the matter;
The regular practice of the business to make the record;
AND
The opponent party does not show a lack of trustworthiness in making the record.
Priority: HIGH
Hearsay Exceptions
Business Records are an exception to the Hearsay rule.
When are they admissible in CA?
The same elements have to be met as required under the FRE.
However, in CA the exception DOES NOT include records of opinions or diagnosis, and the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.
Priority: HIGH
Hearsay Exceptions
Are Statements made for Medical Diagnosis or Treatment an exception to Hearsay rule?
YES, when:
It’s made for and reasonably pertinent to a medical diagnosis, AND
It describes medical history or symptoms (past or present).
In CA: Statements made concerning a person’s past physical state are only admissible IF they were made to medical personnel for the diagnosis/treatment of a child abuse/neglect victim under 12.
Priority: Medium
Hearsay Exceptions
Are Statements of Mental, Emotional, or Physical Conditions an exception to the Hearsay rule?
Yes, the declarant’s then existing state of mind (motive, intent, or plan) OR their emotional, sensory, or physical condition areexceptions to the Hearsay rule.
HOWEVER:
Statements of memory or belief offered to prove a fact believed or remembered are NOT admissible, unless it relates to the validity/terms of the declarants will.
Priority: HIGH
Hearsay Exceptions
What is a Dying Declaration?
In what cases may it be offered?
It is a Hearsay exception, and is admissible when:
The declarant is unavailable (In CA, must be deceased);
The declaration was made under a sense of impending death; AND
Was about the circumstances that put the declarant in the position of impending death. (In CA, must concern what killed him).
*Used in civil cases and criminal homicide cases (CA = any criminal case).
Priority: Medium
Hearsay Exceptions
When is a declarant deemed Unavailable?
If he:
Is exempted due to privilege;
Refuses to testify despite a court order (not applicable in CA);
Testifies that he doesn’t remember the matter;
Can’t be present to testify due to death or illness; OR
He is beyond the reach of the court’s subpoena.
*Unavailability must NOT have been caused by either party.
Priority: HIGH
Hearsay Exceptions
Under the FRE, what records are admissible under the Government or Public Records hearsay exception?
Policies and practices of a public office.
Observations in accordance with duties by law (except police reports in criminal cases).
Factual findings from a legally authorized investigation, BUT only in:
Civil cases; and
Against the government in criminal cases.
*Record will not be admitted if opposing party shows they were made under circumstances lacking trustworthiness.
Priority: Medium
Hearsay Exceptions
In California, what records are admissible under the Government or Public Records hearsay exception?
A writing that is:
Made by and within the scope of duty of a public employee;
Made at or near the time of the act/condition/event; AND
The record was made under circumstances indicating trustworthiness.
Priority: Medium
Hearsay Exceptions
When is a Past Recollection Recorded admissible?
If:
The witness had personal knowledge of the events at one time;
The writing was made/adopted by the witness;
The writing was made while the events were still fresh;
The writing is accurate;
AND
The witness can no longer remember the event.
Priority: Medium
Right to Confront Witnesses
When does an out-of-court statement violate a Defendant’s 6th Amendment rights?
When:
The statement is testimonial;
The declarant is unavailable to be cross-examined at trial;
AND
The defendant didn’t have an opportunity to cross-examine the declarant before trial.
**Exceptions: dying declarations, wrongdoing by a defendant.
Priority: HIGH
Right to Confront Witnesses
What types of statements are testimonial in nature?
Statements made to grand juries;
AND
Statements made to police whose primary purpose is to collect testimony to be used at a later trial.
(It is NOT testimonial if used to assist police in an emergency.)
Priority: HIGH
