Evidence-Hearsay Flashcards
Hearsay
Smith testifies: “I told the police that John was hiding in the barn.”
WIll this be a hearsay statement?
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.
Which of the following will be considered hearsay:
- ______ Bark
- ________ generated time stamp on a fax
- _______ data from a forensic lab machine.
NONE OF IT IS HEARSAY//Declarant must be a person.
DOG
AUTOMATICALLY
RAW
Non-Verbal conduct intended as an assertion WILL/WILL NOT be considered hearsay.
WILL- an assertion is a statement; meant to communicate something.
T/F: Multiple Hearsay can be admissible if each level of hearsay is admissible.
TRUE
What are the NON-HEARSAY Statements?
P
P
P
P
3 Prior with a Party
- Prior Inconsistent Statement (PIS)
- Prior Consistent Statement (PCS)
- Prior Statements of Identification
- Party Admissions
a. Judicial
b. Adoptive
c. Vicarious
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.
DEFENDANT
DECLARANT
Non-Hearsay:
Prior Inconsistent Statements (PIS) will be admissible as __________ evidence if:
- Previously made under _______
- Inconsistent with the ______ ________ being given at trial.
Otherwise, can ONLY be offered for __________ .
SUBSTANTIVE
OATH
PRESENT TESTIMONY
IMPEACHMENT
Non-Hearsay:
T/F: Silence is NEVER considered an ADOPTIVE admission.
FALSE
SIlence will be considered an adoptive admission if:
- Party was present, HEARD and UNDERSTOOD the statement.
- Party had OPPORTUNITY and ABILITY to DENY statement.
- A REASONABLE PERSON would have denied the statement.
Non-Hearsay:
A statement made by an EMPLOYEE during the scope of his EMPLOYMENT WILL/WILL NOT count as a VICARIOUS ADMISSION.
WILL
Hearsay Exceptions (UNAVAILABILITY REQUIRED)
What does “Unavailable” mean for the purposes of these exceptions?
- Exempt on the grounds of ___________ (spousal Immunity).
- _________ to testify, despite a court order.
- Lacks _________ of the subject matter of the statement.
- _________ to testify due to DEATH, MENTAL, etc.
- _________ and cannot be subpoenaed/ made to appear.
PRIVILEGE REFUSES MEMORY UNABLE ABSENT
Hearsay Exceptions (UNAVAILABILITY REQUIRED)
Name the 5 unavailability exceptions to the hearsay rule.
- Former _______
- Dying _________
- Statements _________ Interest
- Statements of __________ or _________ History
- Declarant _________ due to wrongdoing
TESTIMONY DECLARATIONS AGAINST PERSONAL FAMILY UNAVAILABLE
Hearsay Exceptions (UNAVAILABILITY REQUIRED)
Dying Declaration is available ONLY IN _________ and __________ cases.
HOMICIDE
CIVIL
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.
IMMINENT
CAUSE
A deathbed confession to a past crime is therefore USUALLY INADMISSIBLE under this exception.
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Availability is not required for these statements because the way in which they were made is __________ __________.
INHERENTLY TRUSTWORTHY.
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Name all the hearsay exceptions- AVAILABILITY IMMATERIAL:
- ________ _____ Impression
- ________ Utterance
- ________ of Mental, Emotional, Physical Condition.
- Statements made for ________ Diagnosis or Treatment.
- ________ Recollection
- ________ Records
- ________ Records
- ________ Treatise
- ________ Previous Conviction
- Other Exceptions and the catchall (FRE 807).
PRESENT SENSE EXCITED STATEMENTS MEDICAL RECORDED BUSINESS PUBLIC LEARNED JUDGMENT
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Present Sense Impression VS. Excited Utterance- whats the difference?
PSI- Must be a DESCRIPTION OF THE EVENT
Excited Utterance- Need only RELATE to the event.
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Statements made for medical diagnosis or treatment:
- Can include statements of _____ or present SYMPTOMS.
- Also admissible if it goes to the ________ of the injury.
3, Does not need to be made by the _________. - Can be made ONLY for the purpose of physician ________ at Trial.
PAST
CAUSE
PATIENT
TESTIFYING
**MAY still be subject to the physician/patient privilege.
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Recorded Recollection:
- Made or ______ by the witness while the matter was fresh in his mind.
- Witness Cannot _______ events well enough to testify, even AFTER __________ the writing while on the stand.
- The record may be _________ into evidence
ADOPTED
RECALL
CONSULTING
READ
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Recorded Recollection: The proponent of the recorded recollection CAN/CANNOT enter the writing into evidence as an exhibit.
CANNOT
ONLY the OPPOSING COUNSEL can introduce it as an exhibit.
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Business Records- How are these authenticated?
- By the ________ of _______ .
- __________ Witness
- _________ may be self-________ .
CUSTODIAN RECORDS
QUALIFIED
RECORDS AUTHENTICATING
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.
ARE NOT
Might be admitted under a different hearsay rule though.
Hearsay Exceptions (AVAILABILITY IMMATERIAL)
Judgment of Prior Convictions will be admissible if
- punishable by ________ or imprisonment ________ than ______ _______ ; AND
- Judgement was entered after a ________ or ________ plea.
DEATH GREATER ONE YEAR
TRIAL GUILTY
***Does NOT include nolo contendere/no contest.
6th AM Confrontation Clause and Hearsay:
A TESTIMONIAL statement is admissible against a criminal defendant ONLY IF:
- Declarant is _________ .
- _________ had an opportunity to _____ - _________the declarant prior to trial.
UNAVAILABLE
DEFENDANT CROSS-EXAMINE
6th AM Confrontation Clause and Hearsay:
Define: “Testimonial” for purposes of this rule.
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.
Hearsay Exceptions- Availability Immaterial- these statements are admissible without the presence of the declarant because the statements are “_____________ truthful” in nature.
Inherently
Whats an “opposing parties statement”?
“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.
