Evidence _ Hearsay and Circumstances of Admissibility Flashcards
Hearsay (Def)
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted
(Generally Inadmissible - start with the premise that hearsay is inadmissible unless it meets an exception).
ADAPTITIP: If you are not sure – pick “inadmissible as hearsay not within any exception”
Hearsay - Statements NOT offered for Truth
- Words of Offer & Acceptance
- Libel or Slander
- Verbal Acts to show motive/notice
Present Sense Impression:
HEARSAY EXCEPTIONS
- Statement made while observing fact
- Non-emotional observation
*look at timing - if made immediately while seeing = PSI; if made later = NOT PSI
Example:
Present Sense Impression
o “I saw the car go through the red light”
o “The man was walking down the street
wearing a black hat”
o “The woman was wearing a yellow dress as she
crossed the street”
Not Present Sense Impression
o Call wife 12 hours later to say, “I saw the car go
through the red light”
o Call wife 12 hours later to say, “The man was
walking down the street wearing a black hat”
Excited Utterance
Hearsay Exceptions
- Statement made while excited
- Look for “!”
Then Existing Mental, Emotional, Physical State of Mind:
Hearsay Exceptions
- Statements of intent, emotion, or physical
state
Example:
o “I couldn’t have killed her, I loved her” (Emotions)
o “I was going to New York” (State of mind/mental/intent)
o “I was on my way to L.A.” (State of mind/mental/intent)
o “I’m suffering pain right now” (Physical - doesn’t need to be made to a doctor)
Business Record:
Hearsay Exceptions
Record made in the ordinary course of the business (daily routine of business).
If it’s made once in a while, or during a promotion - it’s not a business record regardless of logo/sign.
Example:
Business Record
o President signed an invoice or piece of paper
on ABC Inc. letterhead
o Time sheet
Not Business Record
o Christmas gift for clients on law firm letterhead
Statement for Medical Diagnosis or Treatment:
Hearsay Exceptions
- Statement related to past or present symptoms
- About the treatment or diagnosis
Recorded Recollection
Hearsay Exceptions
1) Witness on the stand cannot remember
2) Document made/adopted by witness
3) CAN be read into evidence
Public Record
Hearsay Exceptions
- Record or statement of a public office/ agency (that shows activity of office; it has to be written - not just some communication)
- Observations by someone with a duty to report
Example:
o Police report
o looking through jail records (remember that question)
Absence of Business Record or Public Record
Hearsay Exceptions
- Look for facts to indicate there was NO
record
Learned Treatise
Hearsay Exceptions
Admissible when an expert witness is relying on the treatise
Ancient Document:
1) Document more than 20 years old
2) Authenticated
Catch-All Exception
Hearsay Exceptions
1) Material
2) Trustworthy
3) In the interest of justice
residual hearsay exceptions - any other statement that is trustworthy, material fact of the case, and it would be in the interest of justice (fair) to help the case, with both parties given advance notice to the parties it will come in.
HEARSAY EXCEPTIONS – Unavailability Requirement
(What does Unavailable mean?)
HEARSAY EXCEPTIONS – Unavailability Requirement
Unavailable witness means not currently at the trial (remember - you have to try and get them to come in too)
Unavailability does not necessarily mean the witness is deceased
Example:
o Missing
o In coma
o Pleaded the Fifth
o Witness Protection Program
Dying Declaration:
HEARSAY EXCEPTIONS – Unavailability Requirement
1) Unavailability
2) Belief of impending death
3) About cause of death
4) Homicide or civil case
Statement Against Interest:
HEARSAY EXCEPTIONS – Unavailability Requirement
1) Unavailability
2) Makes declarant look liable/guilty
3) Generally made by non-party
statement against interest looks like they’re admitting something.
if it’s made by a party - it’s not a statement against interest, it has to be a non-party who’s making the statement
Former Testimony:
HEARSAY EXCEPTIONS – Unavailability Requirement
1) Unavailability
2) Opponent was a party to former case
3) Former case about same subject
4) Made under oath
5) Opportunity to cross-examine
NON-HEARSAY (Definition)
NON-HEARSAY
- Not an exception
- Admissible substantively
Admissions
NON-HEARSAY
- Statement made by a party
- Admissible as NON HEARSAY
Admissions as Party Opponent
Non-Hearsay
admissions by party opponents - one of the parties of the case, making a statement admitting their fault. (admissible as non hearsay)
Vicarious Admissions:
Non-Hearsay
- Statements made by employees about company
vicarious admission any employee of the employer, while in the course of doing their job makes a statement - which tends to look like they’re liable or guitly
Example:
o A worker in the company saying, “We don’t fix the
brakes”
o A worker in the company saying, “We are usually
drunk when we drive”
Adoptive Admissions:
Non-Hearsay
Party does not respond when a reasonable
person would object
adoptive admission - remaining silent when a normal person would have said something.
Prior Consistent Statement:
Non-Hearsay
1) Prior statement by declarant
2) The same as current testimony
3) To refute charge of fabrication or motive
(This is for rehabilitation)
Prior Sworn Inconsistent Statement:
Non-Hearsay
1) Prior statement by declarant
2) Made under oath
3) INCONSISTENT with current testimony
(Used to impeach + substantive b/c nonhearsay)
Prior Identification:
Non-Hearsay
- Declarant testifying about an earlier identification
RIGHT TO CONFRONTATION
Also define Testimonial & Non-Testimonial
Right to confront a witness concerning an out-of-court statement depends on if the statement is TESTIMONIAL
Definition – Testimonial
* Statement not made during an emergency
* Not Admissible
Definition – Non-Testimonial
* Statement made to police during an emergency
* Admissible
Example:
o Statement made to the police during emergency,
“There goes the guy down the street”
PHYSICAL & DEMONSTRATIVE EVIDENCE
Generally Admissible
can make the accused give some physical or demonstrative can come in. (hair, finger nails, making defendant walk to show if he had a limp, is admissible)
Example
o Show scar
o Demonstrate limp
Double Hearsay:
HEARSAY UPON HEARSAY
- TWO different statements
- NOT Admissible unless both meet an exception or exemption to the rule
Example:
o Bob told Fred, who told Jon
