Evidence-Hearsay Flashcards
Hearsay
(a) out of court statement of a person (oral or written or gesture); and
(b) offered to prove the truth of the matter asserted
Is hearsay admissible?
No, unless an exception applies.
What is hearsay within hearsay?
e.g. After the accident, John told me that Mary said she was fine
Admissible only if a hearsay exception applies to both statements
What are the major nonhearsay purposes?
- legally operative facts (e.g. words of contract, legally operative facts)
- effect on listener (e.g. to prove notice in a defamation case)
- circumstantial evidence of declarant’s state of mind (e.g. “Joe said that Kerry was ranting to himself after taking drugs is not hearsay” but “Joe said Kerry was insane” is hearsay
What is the legally operative facts nonhearsay purpose?
facts that have legal significance:
e.g. defamatory statement in a defamation trial; words of K in K trial
What is the effect on listener or reader nonhearsay purpose?
e.g. to show that manager of grocery store was on notice of a dropped salsa jar in the aisle
What is the circumstantial evidence of declarant’s state of mind nonhearsay purpose?
Circumstantial (NOT DIRECT) evidence of declarant’s state of mind.
e.g. to prove insanity or knowledge
What are the hearsay exclusions?
- prior statements of testifying witness in certain cases (see card)
- opposing party’s statements
General rule for prior statements of testifying witnesses?
witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and inadmissible (unless an exclusion applies)
What are the exclusion exceptions for prior statement of testifying witnesses that make them admissible?
- witness’s prior statement of identification
- witness’s prior inconsistent statement, if made under oath during a proceeding
- witness’s prior consistent statement offered to rehabilitate the witness
What is the exclusion exception of opposing party statements?
any statement made by a party is admissible against that party
What is the exclusion exception of opposing party statements? [adoptive statements]
- party may adopt the statement of someone else if a reasonable person would have done so
this exception is not usually allowed in criminal cases
What is the exclusion exception of opposing party statements? [vicarious opposing party statements]
certain statements by some other person admissible against a party because of the relationship between them
Agent/Employee: admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the agency/employment
Co-conspirator: admissible against party if made during and in furtherance of the conspiracy
What are the hearsay exceptions when declarant is unavailable?
804 hearsay exceptions
- former testimony
- statements against interest
- dying declarations
When is former testimony admissible as an 804 hearsay exclusion?
When it is given by a declarant who at a former proceeding (or deposition) where the party it is being given against now had the opportunity and motive to cross-examine the witness.
Issues in proceedings must be similar.
*in criminal cases, statements against interest must be corroborated to test trustworthiness of statements
When is a statement against interest admissible as an 804 hearsay exclusion?
When an unavailable declarant makes a statement against his interest when made that a reasonable person in declarant’s position would have only made it if she believed it to be true.
When is a dying declaration admissible as a 804 hearsay exclusion?
Statement must be made under a belief of IMPENDING and CERTAIN DEATH and statement must relate to the cause or circumstance of what he believed his pending death to be.
Criminal cases: homicide cases only (not even attempted homicide)
Civil: all types of cases
What are hearsay exceptions when the unavailability of declarant is not required?
Rule 803
- excited utterance
- present sense impression
- then existing mental or physical condition
- statement for purposes of medical or physical diagnosis
- business records
- public records
When is an excited utterance (803 hearsay exception) admissible?
(a) statement concerning a startling event; and
(b) made while declarant is still under stress from startling event
When is a present sense impression (803 hearsay exception) admissible?
Description of event (a) while it is occurring; or
(b) immediately after.
When is then-existing state of mind or physical condition (803 hearsay exception) admissible?
Statement about declarant’s own then-existing state of mind, feelings, or physical condition.
State of mind includes declarant’s intent to do something in the future (including to engage in conduct with another)
When is statement made for purpose of medical diagnosis or treatment (803 hearsay exception) admissible?
statement made to anyone about past or present symptoms or general cause of condition
BUT, can’t point blame (e.g. Admissible if declarant said “I have headaches because I was punched” but not if said “I have headaches because D negligently punched me”)
When are business records (803 hearsay exception) admissible?
Elements:
Records of any type of biz or org (incl. nonprofits)
Made in regular course of business
made at or near time of the event recorded
consists of info observed by employees (if an outsider, need independent hearsay exception)
business regularly keeps such records
How do you prove business records elements?
(a) call sponsoring witness (either author of records or person knowledgable of them) to testify to above elements; or
(b) affidavit or unsworn declaration attesting to above elements
