Evidence - Hearsay Flashcards
Hearsay
Out-of-court statement being offered to prove the truth of the matter asserted
Non-Assertive Conduct
Conduct that is not intended as as a statement (not intended to communicate) is NOT hearsay.
Ex. videotape showing D’s demeanor (drunk and stumbling)
What is NOT HEARSAY
CELVIS
(1) Statement of capacity to see, hear, speak, etc.
(2) Effect on the listener (motive, intent, etc.)
(3) Legally operative facts (think contracts or promises)
(4) Verbal Acts (think torts and ks)
(5) Impeachment
(6) State of Mind
Exemptions vs. Exceptions
Exemption > Exceptions
Hearsay Exemptions
(1) Statement by a Party Opponent
2) Prior Statements (in civil and criminal cases
Statement by a Party Opponent
(1) Statement by a named party
(2) Adoptive Admission
(3) Authorized Admission
(4) Employee Admission
(5) Co-Conspirator’s Statements
Statement by a Party Opponent - Statement by a Named Party
A statement of a party offered against him by his opponent
(a) Can be a statement of fact or opinion
(b) Does not have to be against interest when made
(c) Personal knowledge not required; just required to be said BY the declarant and used AGAINST the declarant
Statement by a Party Opponent - Adoptive Admission
Via words, conduct, or silence
Evidence sufficient to show that the party heard and understood the statement, and adopted it as their own
Statement by a Party Opponent - Authorized Admission
Statement by a party’s agent or representative
agency can be express or implied
Statement by a Party Opponent - Employee Admission
Statement of party’s employee offered against the party
Requirements: Statement must be made
(1) during the existence of the employment relationship; and
(2) Concern a matter within the scope of employment
Statement by a Party Opponent - Co-Conspirator’s Statements
Co-conspirator’s statements can be used, regardless of whether or not a conspiracy was actually charged, against all other co-conspirators.
Requirements:
(1) Declarant was a member of the conspiracy
(2) Statement was made “in furtherance” of the conspiracy
(3) Statement was made “during the existence of” the conspiracy
Hearsay Exemption - Prior Statements
All require:
(1) the declarant MUST be testifying at the trial/hearing and is being subjected to C-X re the statement.
(2) Statement must either be:
(a) prior inconsistent statement being offered for its truth
(b) prior consistent statement (after declarant has been impeached); OR
(c) Statement of prior identification
Prior Inconsistent Statement
Needs to have been “sworn” at a trial, deposition, or other proceeding
Hearsay Exceptions when declarant MUST be UNAVAILABLE
(1) Former testimony
(2) Statement made in Belief of Impending Death - dying declaration
(3) Statement against Interest
Present Sense Impression
Statement describing/explaining an event or condition made while or immediately after perceiving it.
Characteristics/Requirements:
(1) Spontaneity
(2) Declarant does not need to be known or available
(3) An UNEXCITED utterance
(4) can be oral or in writing
Excited Utterance
Statement relating to a startling event made while declarant was under the stress of the excited event or condition
Requirements:
(1) Startling event
(2) Personal knowledge required
(3) Statement while still stressed by the event – doesn’t need to be immediate, though
Then-Existing Mental, Physical, or Emotional Condition
Statement of declarant’s then-existing physical, emotional, or mental condition –> relevant only to show declarant’s state of mind
Doesn’t need to be made to a medical person.
Look for prospective statements of intent (forward looking)
DOES NOT apply to past sensations or statements of memory/belief.
Statements for Purposes of Medical Diagnosis or Treatment
Statement is made for the purposes of medical diagnosis or treatment describing medical history, past/present symptoms, pain/sensation, or the cause.
Can be made to any medical personnel or family member.
Statement must be useful for medical diagnosis and treatment
DOES NOT apply to statements admitting/assessing fault.
Past Recollection Recorded
Must first attempt (and fail) to refresh the witness with a leading question or writing before this applies
Requirements:
(1) Writing is read into evidence
(2) Memorandum must have been made while the matter was fresh in the witness’ mind
(3) Authenticated by the witness (testifying that the writing accurately reflects the witness’s prior knowledge)
Adverse party then has the right to:
(1) Inspect the writing
(2) C-X with it
(3) Show it to the jury for comparison
(4) Introduce relevant portions into evidence
Records of Regularly Conducted Activity
(1) A record/report of acts or events made at or near the time by a person with knowledge;
(2) if kept in the course of a regularly conducted business activity, and
(3) if it was the regular practice of that business to make such a record or report
Cannot be those that were prepared in anticipation of litigation.
Public Records and Reports
Record/Statement by a public official is admissible IF it sets out a matter personally observed (which the person is under a legal duty to investigate and report)
NOTE: Law enforcement report is NOT admissible in this exception in a criminal case against the accused.
Statements in Ancient Documents
Admissible if found in a place where these items are typically found (i.e., archives, library, possibly a shoebox)
Includes statements in a document that are in existence before January 1, 1998 and its authenticity is established
Learned Treatises
Foundation authoritativeness established by: judicial notice; expert testimony; or stipulation
(a) Subject area: MASH (Medicine, Art, Science, History)
The treatise is only read to the jury - NOT physically given to the jury.
When is a declarant considered “unavailable”
PRISM
P = Privilege R = Refusal to testify despite court order I = Incapacity due to death or then-existing physical/mental illness S = Even after subpoena (good-faith effort), witness is still unavailable M = Memory is lacking by the witness
