Evidence Flashcards
What is hearsay?
An out-of-court statement offered to prove the truth of the matter asserted
A statement is either an (1) oral or written assertion, or (2) nonverbal conduct considered an assertion (i.e. nod of the head)
Ask: does it matter whether the declarant is telling the truth? If not, then it is not hearsay
What type of statements are not hearsay?
Verbal acts or legally operative facts (e.g. words of contract, defamatory words)
Statements offered to show their effect on the listener or reader (e.g. to prove notice in negligence cases)
Statements offered as circumstantial evidence of a declarant’s state of mind (e.g. evidence of insanity or knowledge)
What statements qualify as nonhearsay (hearsay exclusions)?
Prior statement by a witness
- Prior consistent statement
- Prior inconsistent statement
- Statement of identification
Admission by party-opponent
- Admission
- Adoptive admission
- Vicarious admission
What are the rules for a prior statement by a witness?
A prior statement by a testifying witness who is subject to cross-examination is not hearsay for prior inconsistent statements; prior consistent statements; statements of identification
Remember these hearsay exclusions apply to statements of testifying witnesses only; they do not apply to nontestifying declarants.
What are the rules for a prior inconsistent statement by a testifying witness?
The prior statement is inconsistent with the declarant’s in-court testimony and was given under penalty of perjury in a prior proceeding
A witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under oath. Prior inconsistent statements made under penalty of perjury at a prior trial or proceeding, or in a deposition, are not hearsay under the Federal Rules.
A testifying witness’s prior inconsistent statement made at a deposition is not hearsay because the statement was made under penalty of perjury. Prior inconsistent statements made under oath at a prior trial or proceeding, or in a deposition, are considered nonhearsay under the Federal Rules as long as the declarant is testifying and subject to cross-examination
What are the rules for a prior consistent statement by a testifying witness?
The prior statement is consistent with the declarant’s in-court testimony and is (1) offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement was made before any motive to lie or exaggerate arose), or (2) offered to rehabilitate a witness whose credibility has been impeached on some other ground (other than a general attack on the witness’s character for truthfulness), such as an inconsistency or sensory deficiency
A witness’s prior consistent statement is not hearsay if offered to rebut a charge that the witness is lying for a particular motive. This is regardless of whether it was made under penalty of perjury.
What is the rule for prior statement of identification made by the testifying witness?
The prior statement is one of identification of a person as someone the witness perceived earlier, even if the witness cannot remember the identification
What is a statement of an opposing party?
A statement by an opposing party/an admission of a party opponent
A statement that need not be against the declarant’s interest when made, and may even be in the form of an opinion.
Includes adoptive admissions and vicarious admissions
When is a statement an adoptive admission?
An adoptive admission is a statement from another that is expressly or impliedly adopted by the party opponent
- If a reasonable party would have responded, and the party opponent remains silent, his silence may be considered an implied admission. Silence is treated as an admission only if:
- The party heard and understood the statement
- The party was physically and mentally capable of denying the statement, and
- A reasonable person would have denied the accusation
Silence in the face of police accusations in a criminal case is almost never considered an admission of a crime
When is a statement a vicarious admission?
When a statement is made by an authorized spokesperson, an agent of a principal, a partner in matters concerning the partnership, a co-conspirator, joint tenants
Statements of co-parties are inadmissible
Before admitting a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered. The court must consider the contents of the statement; the statement alone is not sufficient to establish the required relationship
What hearsay exceptions apply when the declarant is unavailable?
Former testimony
Statements against interest
Dying declarations
Statements of personal or family history
Statements offered against a party procuring declarant’s unavailability
When is a declarant unavailable?
When he:
- Is exempt from testifying because of privilege,
- Refuses to testify concerning the statement despite a court order
- Testifies that he does not remember the subject matter
- Is unable to testify due to death or physical or mental illness, or
- Is absent (beyond the reach of the court’s subpoena), and the proponent is unable to procure his attendance by reasonable means
What is a statement against interest?
A statement against the declarant’s pecuniary, proprietary, or penal interest when made
(i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true.(ii) Declarant must have had personal knowledge of the facts.(iii) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.(iv) Declarant must be unavailable as a witness.
What is former testimony?
Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony
For the former testimony exception to apply there must be a sufficient “identity of parties.” The requirement of identity of parties does not mean that parties in the current case on both sides of the controversies must be the same as in the prior case. It requires only that the party against whom the testimony is offered or, in civil cases, the party’s predecessor in interest was a party in the former action. The former testimony must have been given under oath or sworn affirmation. The former testimony is admissible upon any trial in the same or another action of the same subject matter. The cause of action in both proceedings need not be identical; only the “subject matter” of the testimony needs to be the same. The party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the declarant. Thus, defendant must have been able to question the declarant about the statement in the prior case.
What is a dying declaration?
Statement made while declarant believed death was imminent, concerning the cause of circumstances of the impending death
the exception for dying declarations is available only in civil actions and homicide prosecutions.
For the dying declaration exception to apply, the declaration cannot merely concern any subject; rather, it must concern the cause or circumstances of what the declarant believed to be his impending death. The exception is not strictly limited to identification of the perpetrator of the declarant’s injuries. It applies to the cause or circumstances, which could be more than just who did it, e.g., it could be how he was mortally wounded even if he did not know by whom.
What is a statement of personal or family history?
Statement of personal or family history (e.g. birth, death, marriage) made by a family member or one intimately associated with the family
What is a statement offered against party procuring declarant’s unavailability?
Statement of unavailable declarant offered against the party who intentionally procured declarant’s unavailability
What is the present state of mind exception?
A statement of then-existing state of mind, emotion, sensation, or physical condition (usually introduced to establish intent. Admissible when state of mind is a material issues or to show subsequent acts of declarant).
Declarations of existing state of mind are admissible (i) when declarant’s state of mind is directly in issue, or (ii) if they are declarations of intent offered to show subsequent acts of the declarant.
What is an excited utterance?
Statement made while under stress of excitement of startling event
Must be made while still under stress of the event (before declarant has time to reflect on the event)
What is a present sense impression?
Statement made concurrently with perception of event described
The event need not be startling
Must be made while or immediately after perceiving the event
What is a statement for medical diagnosis or treatment?
Statement of past or present physical condition, or the cause of the condition, made for the purpose of diagnosis or treatment
Usually a declarant describing her own condition, or usually statements made to medical personnel
Declarations of past physical conditions made to a doctor employed to testify are admissible
Statements of fault or wrongdoing connected with medical diagnosis are inadmissible (i.e. “I was stabbed with a knife; my roommate did it” - the first portion of the statement is admissible but the second portion is inadmissible)
Declarations of past physical condition are admissible only if made to assist in diagnosing or treating the condition. It is not enough to make such a declaration for any reason at all (e.g., complaining to a friend). There is no requirement that a declaration of past bodily condition be made in an emergency situation. A declaration made at a routine office visit could be admissible if made to assist in diagnosing or treating the condition.
What is a business record?
A writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to make or transmit information.
Lack of such writing may be used to show the nonoccurrence of an event
The Federal Rules have dealt with the problem of records prepared “in anticipation of litigation” by granting the trial court discretion to exclude any business record if the opponent shows that the source of information or other circumstances indicate the record lacks trustworthiness.
Also, the record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant
What are public records and reports/records of vital statistics?
Records and reports of public agencies regarding their activities and records of births, deaths, marriages, etc. Absence of public record is admissible to show nonexistence of a matter
What are judgments?
Copies of a judgment of a prior felony conviction is admissible in civil or criminal court to prove any fact essential to the judgment. In a criminal case, it may be used for this purpose only against the accused
However, prior acquittals are not admissible under the public records exception.
The Federal Rules specifically provide that judgments of felony convictions are admissible as exceptions to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. Note, however, that the rules barring character evidence still apply.
What are ancient documents?
Statements in authenticated documents prepared before January 1, 1998
What are documents affecting property interests?
Statements in a document affecting an interest in property (i.e. a deed, will)
What are learned treatises?
Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority
Or established as reliable authority by judicial notice.
What are reputation statements?
Reputation evidence concerning a person’s character, personal or family history, or land boundaries, or a community’s general history
What are family records?
Statements of fact found in family Bibles, jewelry, engravings, tombstones, etc.
