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Evidence w/ FL Distinctions > Evidence-Hearsay > Flashcards

Evidence-Hearsay Flashcards

1
Q

Hearsay

Smith testifies: “I told the police that John was hiding in the barn.”

WIll this be a hearsay statement?

A

If offered to prove that John was in the barn- HEARSAY. (the truth of the matter asserted).

If offered to prove the effect the statement had on police: NOT HEARSAY.

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2
Q

Which of the following will be considered hearsay:

  • ______ Bark
  • ________ generated time stamp on a fax
  • _______ data from a forensic lab machine.
A

NONE OF IT IS HEARSAY//Declarant must be a person.

DOG
AUTOMATICALLY
RAW

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3
Q

Non-Verbal conduct intended as an assertion WILL/WILL NOT be considered hearsay.

A

WILL- an assertion is a statement; meant to communicate something.

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4
Q

T/F: Multiple Hearsay can be admissible if each level of hearsay is admissible.

A

TRUE

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5
Q

What are the NON-HEARSAY Statements?

P
P
P
P

3 Prior with a Party

A
  1. Prior Inconsistent Statement (PIS)
  2. Prior Consistent Statement (PCS)
  3. Prior Statements of Identification
  4. Party Admissions
    a. Judicial
    b. Adoptive
    c. Vicarious
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6
Q

Non-Hearsay:

Non-Hearsay Prior statements (Inconsistent/Consistent/Identification) can be used ONLY IF __________ is testifying at trial; and the ________ must be subject to Cross-examination.

A

DEFENDANT

DECLARANT

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7
Q

Non-Hearsay:

Prior Inconsistent Statements (PIS) will be admissible as __________ evidence if:

  1. Previously made under _______
  2. Inconsistent with the ______ ________ being given at trial.

Otherwise, can ONLY be offered for __________ .

A

SUBSTANTIVE

OATH

PRESENT TESTIMONY

IMPEACHMENT

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8
Q

Non-Hearsay:

T/F: Silence is NEVER considered an ADOPTIVE admission.

A

FALSE

SIlence will be considered an adoptive admission if:

  1. Party was present, HEARD and UNDERSTOOD the statement.
  2. Party had OPPORTUNITY and ABILITY to DENY statement.
  3. A REASONABLE PERSON would have denied the statement.
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9
Q

Non-Hearsay:

A statement made by an EMPLOYEE during the scope of his EMPLOYMENT WILL/WILL NOT count as a VICARIOUS ADMISSION.

A

WILL

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10
Q

Hearsay Exceptions (UNAVAILABILITY REQUIRED)

What does “Unavailable” mean for the purposes of these exceptions?

  1. Exempt on the grounds of ___________ (spousal Immunity).
  2. _________ to testify, despite a court order.
  3. Lacks _________ of the subject matter of the statement.
  4. _________ to testify due to DEATH, MENTAL, etc.
  5. _________ and cannot be subpoenaed/ made to appear.
A 
PRIVILEGE
REFUSES
MEMORY
UNABLE
ABSENT
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11
Q

Hearsay Exceptions (UNAVAILABILITY REQUIRED)

Name the 5 unavailability exceptions to the hearsay rule.

  1. Former _______
  2. Dying _________
  3. Statements _________ Interest
  4. Statements of __________ or _________ History
  5. Declarant _________ due to wrongdoing
A 
TESTIMONY
DECLARATIONS
AGAINST
PERSONAL  FAMILY
UNAVAILABLE
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12
Q

Hearsay Exceptions (UNAVAILABILITY REQUIRED)

Dying Declaration is available ONLY IN _________ and __________ cases.

A

HOMICIDE

CIVIL

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13
Q

Hearsay Exceptions (UNAVAILABILITY REQUIRED)

Dying Declaration- statement MUST be made when the declarant believes death is ________ . and the statement MUST pertain to the _______ of death.

A

IMMINENT

CAUSE

A deathbed confession to a past crime is therefore USUALLY INADMISSIBLE under this exception.

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14
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Availability is not required for these statements because the way in which they were made is __________ __________.

A

INHERENTLY TRUSTWORTHY.

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15
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Name all the hearsay exceptions- AVAILABILITY IMMATERIAL:

  1. ________ _____ Impression
  2. ________ Utterance
  3. ________ of Mental, Emotional, Physical Condition.
  4. Statements made for ________ Diagnosis or Treatment.
  5. ________ Recollection
  6. ________ Records
  7. ________ Records
  8. ________ Treatise
  9. ________ Previous Conviction
  10. Other Exceptions and the catchall (FRE 807).
A 
PRESENT SENSE 
EXCITED 
STATEMENTS
MEDICAL 
RECORDED 
BUSINESS
PUBLIC
LEARNED 
JUDGMENT
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16
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Present Sense Impression VS. Excited Utterance- whats the difference?

A

PSI- Must be a DESCRIPTION OF THE EVENT

Excited Utterance- Need only RELATE to the event.

17
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Statements made for medical diagnosis or treatment:

  1. Can include statements of _____ or present SYMPTOMS.
  2. Also admissible if it goes to the ________ of the injury.
    3, Does not need to be made by the _________.
  3. Can be made ONLY for the purpose of physician ________ at Trial.
A

PAST

CAUSE

PATIENT

TESTIFYING

**MAY still be subject to the physician/patient privilege.

18
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Recorded Recollection:

  1. Made or ______ by the witness while the matter was fresh in his mind.
  2. Witness Cannot _______ events well enough to testify, even AFTER __________ the writing while on the stand.
  3. The record may be _________ into evidence
A

ADOPTED

RECALL

CONSULTING

READ

19
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Recorded Recollection: The proponent of the recorded recollection CAN/CANNOT enter the writing into evidence as an exhibit.

A

CANNOT

ONLY the OPPOSING COUNSEL can introduce it as an exhibit.

20
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Business Records- How are these authenticated?

  1. By the ________ of _______ .
  2. __________ Witness
  3. _________ may be self-________ .
A

CUSTODIAN RECORDS
QUALIFIED

RECORDS AUTHENTICATING

21
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Business Records: Police Reports are admissible business records and witness statements WITHIN police reports ARE/ARE NOT admissible under this exception.

A

ARE NOT

Might be admitted under a different hearsay rule though.

22
Q

Hearsay Exceptions (AVAILABILITY IMMATERIAL)

Judgment of Prior Convictions will be admissible if

  1. punishable by ________ or imprisonment ________ than ______ _______ ; AND
  2. Judgement was entered after a ________ or ________ plea.
A

DEATH GREATER ONE YEAR

TRIAL GUILTY

***Does NOT include nolo contendere/no contest.

23
Q

6th AM Confrontation Clause and Hearsay:

A TESTIMONIAL statement is admissible against a criminal defendant ONLY IF:

  1. Declarant is _________ .
  2. _________ had an opportunity to _____ - _________the declarant prior to trial.
A

UNAVAILABLE

DEFENDANT CROSS-EXAMINE

24
Q

6th AM Confrontation Clause and Hearsay:

Define: “Testimonial” for purposes of this rule.

A

TESTIMONIAL: a statement made to police during interrogation for the purposes of using the statement during a criminal prosecution.

NOT TESTIMONIAL: Statement made to police during questioning but purpose was to help someone else.

25
Q

Hearsay Exceptions- Availability Immaterial- these statements are admissible without the presence of the declarant because the statements are “_____________ truthful” in nature.

A

Inherently

26
Q

Whats an “opposing parties statement”?

A

“A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.”

Previously known as: ADMISSION OF PARTY OPPONENT.

Evidence w/ FL Distinctions (5 decks)

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