evidence - hearsay Flashcards
Hearsay
- Definition: 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
- Statements NOT offered for truth:
- Words of offers and acceptance
- Libel or slander
- Verbal acts to show motive/notice
Default: not admissible as hearsay
Hearsay exceptions
- Present sense impression
- Excited utterance
- Then existing mental, emotion, physical state of mind
- Business record
- Statement for medical diagnosis or treatment
- Recorded recollection
- Public record
- Absence of business or public record
- Learned treatise
- Ancient document
- Catch-all exception
Hearsay Exceptions - unavailability required
- Unavailable witness means not currently at the trial (missing, in coma, pleaded the Fifth, witness protection program, etc)
-1 Dying declaration:- Unavailable (not necessarily dead)
- Belief of impending death
- About cause of death
- Homicide or any civil case
-2 Statement against interest: - Unavailable
- Makes declarant look liable/guilty
- Generally made by non-party
-3 Former testimony - Unavailable
- Opponent was a party to former case
- Former case about same subject
- Made under oath
- Opportunity to cross-examine
Non-hearsay
- Not an exception. Admissible substantively!
-1 Admissions: statement made by a party- Vicarious: made by employees about company
- Adoptive: party does not respond when a reasonable person would object
-2 Prior consistent statement
1. Prior statement by declarant
2. The same as current testimony
3. To refute charge of fabrication or motive
-3 Prior sworn inconsistent statement
1. Prior statement by declarant
2. Made under oath
3. INCONSISTENT with current testimony
-4 Prior identification: declarant testifying about an earlier identification
Present sense impression
statement made while observing fact; non-emotional observation
Excited utterance
statement made while excited; look for “!”
then existing mental, emotion, physical state of mind
intent, emotion, or physical state
Business record
made in the ordinary course of the business
Statement for medical diagnosis or treatment
related to past or present symptoms; about treatment/diagnosis
Recorded recollection
- Witness on the stand cannot remember
- Document made/adopted by witness
- be read into evidence
Public record
statement/record of public office/agency; observations by someone with a duty to report (police report)
Absence of business or public record
look for facts to indicate there was NO record
Learned treatise
admissible when an expert witness is relying on the treatise
Ancient document
- Authentication: document must be more than 20 years old
- FRE hearsay exception: document must have been prepared before 1998
Catch-all exception
- Material
- Trustworthy
- In the interest of justice
