Exceptions to Hearsay Flashcards
EXCEPTIONS TO HEARSAY
✸ALL EXCEPTIONS (MINUS ADMISSIONS) –DECLARANT MUST SPEAK FROM PERSONAL KNOWLEDGE
B.R.I.E.F………C.A.S.E………..D.A.D
B —–> BUSINESS RECORD (803 (6),(7),(8))
Business Records (803 (6),(7),(8))
With business records we are asking:
With business records we are asking:
1) Is the content of the information contained in the business record made by a person who has a DUTY to that organization?
2) OR if the judge can find the contents contained in that business record are independently and inherently trustworthy and reliable?
S—>State of Mind
✸NOTE! THE STATE OF MIND OF THE OTHER PERSON MAY BE INFERRED FROM THE DECLARANT’S STATEMENTS LIBERAL INTERPRETATION
Business Records (803 (6)
- Business Records: 803(6) → Regular Activity
o All persons in that business were relevant to able to able to produce and testify to the records and you did not need every person to come in and testify to the document
o As long as the custodian of records or a “sponsoring witness” - DOES NOT MATTER IF THE DECLARANT IS AVAILABLE!!
1) DECLARANT MUST HAVE PERSONAL KNOWLEDGE
2) MUST BE A WRITTEN RECORD
3) MUST BE FROM A BUSINESS ORGANIZATION
4) MUST BE MADE & KEPT IN THE REGULAR/ROUTINE COURSE OF BUSINESS
5) MUST HAVE BEEN MADE AT OR NEAR THE TIME OF THE EVENT
6) THERE MUST BE A CUSTODIAN PRESENT IN COURT TO LAY THE FOUNDTION
7) THE SOURCE OF THE INFORMATION MUST BE TRUSTWORTHY OR RELIABLEo The exception does not apply if the source of the information or the method or circumstances of preparation indicate a lack of trustworthiness.
o i.e. if a police officer wrote in his business record an excited utterance that he witnessed, this is double hearsay, but the source of the information from the excited utterance is reliable, so the business record is reliable as well
o A memorandum is not a business record if it is made from information derived from an individual who has contributed voluntarily and is not under the sanction of duty or other obligation. (i.e., Johnson v. Lutz – Court held that police record was inadmissible because it was based on statements given by others and not the personal knowledge of the police office).
* The custodian of the record can be ANYONE with knowledge
* To be admissible under the business records exception to the hearsay rule, the source of the information/ the content in the record must be TRUSTWORTHY
FRE 803(7) ABSENCE OF A RECORD OF A REGULARLY CONDUCTED ACTIVITY. EVIDENCE THAT A MATTER IS NOT INCLUDED IN A RECORD DESCRIBED IN PARAGRAPH (6) IF:
FRE 807 The Residual Exception to the Hearsay Rule
FRE 803(8) Public Records
- Public records dont have to be made in a regular part of a government’s entity’s course of business unlike business record
-But must have people that make the records with accuracy -Dont need a witness if it is certified and dont need a custodian
-Declarant must have Personal knowledge
-Declarant must have a legal duty to report imposjed by lawe buit no suty to the organization to gather for the business
-Must be trustworthy
FRE 805: Hearsay witin Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
Hearsay Checklist (Part 1)
Hearsay (Part 2)
R—>Recorded Recollection
I—>INTEREST (DECLARATATION AGAINST INTEREST)
E—>Excited Utterance
F—> FROMER TESTIMONY
C—>CONTEMPORANEOUS UTTERANCE (PRESENT SENSE IMPRESSION)
A–>Admission FRE 801(D)(2)
E—>EVERYTHING (RESIDUAL EXCEPTION)
D–> Dying Declaration
A—> Absence Maker (Forfeiture by Wrongdoing)
D—>Docter (Medical Diagnosis & Treatment)
