Evidence - Hearsay Part 4 Flashcards
803 Exceptions: Declarant’s Unavailability NOT Required
Spontaneous Statements + Records and Document Exceptions
Excited Utterance
A statement that relates to a startling event when the declarant made the statement while under stress of excitement of the event.
Policy: the stress of the event temporarily suspends a person’s ability to lie “OMG SHIT’S GOING DOWN OMG JOHN JUST SHOT MIKE” suggests that it’s legit. If followed by a short amount of time, it can still work. But it must be a short time with CONTINUOUS excitement. On the bar, you will see crying or shaking or exclamation.
Doesn’t require unavailability of the declarant.
Present Sense Impression
This statement describes an event or explains a condition while the declarant is perceiving it or immediately after. They’re describing it while or right after it happens.
Policy: justified exception because you don’t have time to lie as it’s happening.
Don’t need excitement or death or unavailability. Just need the present issue. The short passage of time is what matters. The present sense impression and the excited utterance exceptions tend to overlap. Analyze under BOTH if you can.
Present Mental, Emotional, or Physical Condition
Statements of Intent count
“I’m going to get wasted tonight”
“I’m going for a run in the park tomorrow”
“I’m so tired of my job, I’m going to quit this afternoon”
Emotional Physical Symptoms
“I’m so stressed out right now”
A statement of then-existing physical condition. How the declarant felt when making the statement.
Backward-looking statements DON’T COUNT
Statements Made for Medical Diagnosis or Treatment
Must be reasonably pertinent to diagnosis or treatment
1) Includes present physical condition AND
2) past physical condition AND
3) cause of condition AND
4) another person’s condition (to get help for that person)
But note that it still has to be about the medical thing. Example: The first 3 out of these 4 are admissible:
1) “The pain in my arm is killing me”
2) “I’ve been losing sleep for 6 months because of the pain”
3) “This all started when I fell down a stairway”
4) “It was slippery, with no treads” (THIS ONE FAILS because it doesn’t help the doctor treat, not pertinent to diagnosis or treatment)
Business Records (Records of a Regularly Conducted Activity)
This applies to just about any type of business or organizational record. For profit or non-profit. Stores, hospitals, corps, churches. Topics can include any act, condition, etc.
MUST be kept in the course of a regularly conducted activity. The record must have been a regular practice of that activity. CANNOT be made in anticipation of litigation.
MUST have been made at or near time of event or condition.
The content MUST consist of information within personal knowledge of employees of the business. People who have a business duty to report must be the source of the info in the record and they must have personal knowledge of what happened in the record. It’s ok if 1 person sees it and the other writes it down as long as one of them had a business duty to report.
Business record must be AUTHENTICATED via 1) live testimony (someone live at trial testifying that the elements are met) or 2) written certification from the custodian of records or other qualified person. That makes records admissible.
Sometimes a record can meet just about everything but still be excluded if the source or method of preparation indicate a LACK OF TRUSTWORTHINESS. Something about the record is SHADY. The burden is on the opponent to show it’s shady.
The absence of a business record is admissible to prove that something did NOT occur if it’s a regular practice of the business to keep a record of something if it had occurred.
Public Records
1) Records of a public office/agency showing activities of the office or agency
2) Matters pursuant to a duty imposed by law (like weather bureau temperature records)
3) Findings of fact or opinion from authorized investigation (FAA report on plane crash)
LIMITATION: police reports often meet these elements or those of the business records, but police records are generally NOT admissible against D in CRIMINAL case
Public record kept out if it’s SHADY.
Absence of public record is evidence to show it didn’t happen if the office regularly kept records on such things.
Recorded Recollection (Past Recollection Recorded)
Only relevant with a live witness who can’t remember the facts. The witness USED to know this but they can’t remember while on the stand. This is trying to refresh the witness’ memory. You show them the document then set it aside. If they remember, then they testify from memory. The doc itself is not being offered into evidence. Refreshing recollection has no implication for hearsay. But let’s say you fail and it doesn’t jog their memory. Under certain circumstances you can use the doc as a substitute for the witness’ memory, which DOES implicate hearsay.
This exception applies to any recorded doc where a witness recounted some event.
Recorded Recollection:
1) previously known;
2) unable to remember;
3) made or adopted by witness
4) when fresh in witness’ mind
5) accurate when made
TRICKY ISSUE: The doc will be read into evidence but not given to the jury as an exhibit. It’s just read and not handed over into evidence. BUT the jury will receive the doc as exhibit if the ADVERSE PARTY CHOOSES to offer it as an exhibit.
REFRESHING RECOLLECTION vs. RECORDED RECOLLECTION
Learned Treatises, Periodicals, and Pamphlets
These are reliable authorities in a particular field. They can ONLY be used in the context of EXPERT TESTIMONY. You can’t just offer it into evidence because you like what it says. Only used in conjunction with direct and crossX of experts.
Must be called to expert’s attention on cross OR relied upon by the expert on direct.
Treatise must be established by reliable authority.
2nd option is to bring in another expert to vouch for its reliability, or a judge might luckily say they’ll take judicial notice that it’s a good treatise.
NOT given to jury as exhibit. BUT can be read aloud into evidence. Like recorded recollection, the relevant bits are written into evidence, but don’t want to give too much weight.
Comes in for the truth of the matter asserted in the treatise, either to prove the witness is legit or for the truth of what it says.
