Evidence Flashcards
Definition of Hearsay
If you don’t know the answer to this question just give up now…
Is a computer generated report of electronic key swipes at a hotel hearsay?
Not hearsay because the report is not a person therefore not a DECLARANT.
-Declarant must be a person
Is a BOLO hearsay?
If used to show logical sequence of events, NO. If statement is inculpatory, then YES.
Requirement for Prior Inconsistent Statement to be introduced as substantive evidence & not hearsay?
Prior Statement made (a) Under oath & (b) Subject to Perjury in a trial, hearing, other proceeding (i.e. grand jury proceeding), or CIVIL deposition.
How to introduce non-hearsay Prior Consistent Statement
- Witness must be testifying at current trial
- Witness must be cross-examinable
- Statement must be consistent with present testimony
- Must be offered to rebut a charge of “recent fabrication or improper influence or motive”
Foundation for non-hearsay Statement of Identification
- Declarant is testifying at current trial
- Is subject to cross at current trial
- Statements relates to identification the declarant made shortly after perceiving the person
What are the hearsay exceptions which require declarant to be unavailable?
- Former testimony
- Statement made under belief of impending death
- Statement against interest
- statement of personal/family history
- Statement offered against a party that wrongfully caused the declarant’s unavailability
- don’t worry about #6 (inapplicable to criminal law)
Foundation for introduction of former testimony?
- Witness was in fact unavailable AT THE TIME OF TRIAL
- Witness previously testified about the subject matter
- Parties in the first proceeding had the same motive & had the same opportunity to cross-examine the witness
- Issues are the same in the 2 proceedings and the party against whom the evidence is being offered is the same
What makes a declarant ‘unavailable’ under FRE 804/FEC 90.804?
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.
What’s a Spontaneous Statement?
Statement that
- describes or explains presently occurring events
- can identify the defendant
* no need to have an exciting event
* *inadmissible is circumstances indicate untrustworthiness
Excited Utterance?
Statment that:
- concerns an event startling enough to cause nervous excitement;
- before there was time to contrive or misrepresent; and
- while under the stress or excitement caused by the event
* watch out for Crawford violations with these statements
Statement for purpose of medical treatment
- made to medical professional
- for purpose of treatment
- pertinent to treatment
* with children these may come be admissible as child hearsay
Adoptive admissions
- heard AND understood by D
- about facts within knowledge of D
- nothing stopping D from responding
- not unreasonable to expect a denial by D
- If untrue, statement would call for a denial by D under the circumstances
