Evidence-Hearsay Flashcards
Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is generally not admissible.
Assertive nonverbal conduct
is treated as a statement and is subject to hearsay rules. If nonassertive. not hearsay.
An out-of-court statement is not hearsay if offered for other purposes such as
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient (e.g. recipient had notice);
(3) As circumstantial evidence of the declarant’s state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.
Hearsay within hearsay:
both levels of hearsay must be admissible.
Nonhearsay (can be used to prove the truth of the matter asserted)
3 Prior statements made by testifying declarant subject to cross
- prior inconsistent statements under oath (can be used to impeach and as substantive evidence)
- prior consistent statements
- prior statements of identification
1 Opposite party’s prior statements
A testifying declarant’s prior consistent statements made out-of-court:
admissibility and functions
Admissibility: admissible as nonhearsay.
Functions: use to
(1) rehabilitate the witness’s credibility or
(2) rebut a suggestion of fabrication/improper motive, as long as the prior statement was made before the witness had reason to fabricate.
Opposite party’s prior statements
Express adoption
Adoption by silence
Vicarious adoption
Adoptive admission: express adoption
A statement of another that a party expressly or impliedly adopts as his own is an adoptive admission by a party opponent.
They can expressly adopt someone’s statement (e.g. yes I did [do this])
Adoption by silence
∑ (a) party heard a statement and understood it
(b) he had the ability to deny it and
(c) a reasonable person in the similar situation would’ve denied the statement
Vicarious adoption:
- Agents/employees’ statement on matters within the scope of employment;
- Co-conspirators’ statement during or in furtherance of a conspiracy
*Court cannot use the statement itself to establish the relationship
Hearsay exceptions applicable only when declarant is unavailable:
3 statements
- Statement against interest
- Statement of personal history
- Statement against wrongful opponent
1 Former testimony
1 Dylng declaration
A declarant is unavailable if
Read PRISM: Privilege / refusal/ incapability / subpoena/memory
(1) exempted from testifying on the grounds of privilege;
(2) refuses to testify
(3) lacks memory on the subject matter
(4) dead/too ill; or
(5) is absent and can’t be subpoenaed.
*Not unavailable if a party wrongfully causes declarant to be unavailable to prevent testimony
- Former testimony of an unavailable declarant
admissible if opposing party had an opportunity and similar motive to examine/cross the unavailable declarant
- Dying declarations of an unavailable declarant
admissible if
(a) declarant thought death was imminent; and
(b) statement relates to the cause or circumstance of death.
Admissible in a homicide or civil case
- Statement against interest by unavailable declarant
admissible if
(a) at the time it was made,
(b) the statement was against the declarant’s property/civil/penal interest such that
(c) a reasonable person would have not made it if it weren’t true.
© if statement would subject the declarant to criminal liability, there must be corroborating circumstances to indicate the trustworthiness
- Statements of personal/family history by unavailable declarant
unavailable declarant’s statements concerning declarant’s own personal history are admissible.
9 hearsay exceptions that don’t require declarant be unavailable:
4 statements:
- present sense,
- excited utterance,
- physical/mental condition,
- medical condition
5 Records:
- past recollection,
- business records,
- public records,
- criminal records (judgment of prior conviction)
- treatise
- Present sense impression:
statement describing an event/condition that is made while declarant was perceiving the event (or immediately after)
- Excited utterance:
statement relating to a startling event while declarant is still under the stress of excitement
- Statement of mental, emotional, or physical condition (state of mind hearsay exception)
Statement of the declarant’s then-existing state of mind OR physical condition
Statement of intent: A declarant’s statement of present intent, motive, or plan can be used to prove declarant acted in conformity with that intent. © N/A to prove conduct that occurred before the statement was made.
Statement of physical condition: A declarant’s statement of then-existing feeling, health can be used to prove the existence (not its cause) of that condition at the time
- Statement made for medical treatment purposes
statement describing declarant’s medical history or present/past symptoms or source of an injury that are pertinent to treatment or diagnosis
- Past recollection recorded:
A memorandum/record about a matter is admissible if the matter is
(a) witness once had knowledge of but now has insufficient recollection of to testify, and
(b) the record was made/adopted by witness when matter was fresh in witness’s memory and
(c) accurately reflects witness knowledge.
Witness may read the record to jury, but only the adversary can introduce the record into exhibit.
Hearsay exception: Business records
Business records (any record of an act or event made in the course of regularly conducted business activity) is admissible if the record was made
(a) at or near the time of the event it records
(b) by the person with knowledge of the event and under a duty to report it and
(c) making that record is part of regular business practice.
Exception for business record hearsay exception
If record was made specifically for the purposes of litigation, it would take the record outside the hearsay exception.
Courts may exclude if source or method indicate a lack of trustworthiness
Public records hearsay exception
Admissible contents: (1) agency/office’s activities; (2) their observations; (3) their factual findings © some limitations for police report
Absence of public record: testimony suggesting absence is admissible if a public office regularly kept a record of statements for a matter of that kind
Exception for public records hearsay exception
© Police reports being used against criminal D can only introduce the agency activities, not observations or conclusions
Learned treatises
A statement contained in a treatise/book is admissible to prove facts in that matter if
(a) reliable authority (established as reliable (1) by admission or testimony of the expert witness, (2) by another expert’s testimony, or (3) by judicial notice); and
(b) expert relied on it or it was used to cross-examine an expert (an expert witness relied on the statement during direct examination OR it was called to the expert’s attention on cross-examination)
© If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit.
Judgments of previous conviction
Evidence of a final judgment of conviction of a serious crime (death or 1+ jail) can be used to prove any fact essential to sustain the judgment.
Sixth Amendment additional limitation on hearsay
Out-of-court statements that are testimonial can be used against a criminal defendant only if (1) declarant is unavailable and (2) defendant had a prior opportunity to cross examine that declarant
A statement is testimonial if
statement is made with the primary purpose of ascertaining past criminal conduct. e.g. testimony from prelim hearing, GJ hearing, former trial, police investigation, forensic testing if offered to prove truth.
Statements that are not testimonial
statements made for the purpose of getting help during emergency (police interrogation can be nontestimonial if questioning was to respond to an ongoing emergency).
Exception to 6th Amendment
The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.
prior inconsistent statements
Nonhearsay if made by testifying declarant subject to cross.
can be used to impeach
can be used as substantive evidence only if made under oath
