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Evidence > Exceptions to Hearsay > Flashcards

Exceptions to Hearsay Flashcards

1
Q

801d2

A

opposing parties statements

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2
Q

statement made by the D that “the baby wont stop crying” is it hearsay? is it allowed?

A

offered to show that the baby wouldnt stop crying and based on the truth of that matter goes to prove the motive that the baby wouldnt stop crying.
Allowed because its the D statements and its offered against them

801(d)(2)(A) : statement of party may be used against the party

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3
Q

801d2A

Rationale for rule

A

no hearsay problem- speaker is in court
words from speaker are assumed to be reliable

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4
Q

are billable hour time sheets hearsay? are they allowed?

A
  1. Out of court statement
  2. offered to show the truth of how much she worked
    allowed because the statement is by the opposing party and its offered against the opposing statement.
    no distinction between admissions and statements. just have to make the statement

801d2A

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5
Q

Trooper made statement that he heard one of the 2 people in an accident admit they were at fault

is this hearsay? is this allowed?

problem 7.11 pg 433

A

it is hearsay: out of court statement offered for its truth
not allowed; under opposing party exception

hearsay inside hearsay- 805

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6
Q

805

A

2 level hearsay? okay to admit if an exception can be applied to BOTH levels of hearsay

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7
Q

801d2B inferences

A

4 inferences for adoptive admission:
1: d heard and understood the statement
2: D at liberty to respond
3: circumstances called for a response
4: D failed to respond or did not rebut (when silence is relied upon, theory is that they would have rebutted if unture)

admit if met

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8
Q

daughter went to go visit dad in jail for murder. daughter says “the truth will set is free” responds by pointing to camera

problem 7.14 pg. 436

A

D heard and understood the statement-
D at liberty to respond- maybe, maybe not. because he was Mirandaized he knows that his statements can be used against him. maybe isnt at liberty
circumstances called for a response- accustation of murder calls for response
D failed to respond- remained silent and pointed to camera

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9
Q

801d2D

A

statements of an agent, during the scope of agency, allowed in even without personal knowledge

usually, personal knowledge is required for testimony- exception

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10
Q

801d2E

A

co-conspirator statements

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11
Q

801d2E

Bourjaily v. US

coke conspiracy

A

need a preponderance of a conspiracy to admit under the rule. Hled that the rules dont say cannot use the statement just that it cannot stand alone. other evidence shows the consipiracy and is okay to admit.

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12
Q

104a v. 104b

bourjaily/huddleston

A

rule says the court must decide ANY preliminary question on whether a W is qualified, a privilege exists o
104a deals with everything. 104b deals with application of legal standard.

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13
Q

104b

huddleston

A

when issue is one of relevancy then the jury must decide whether the condition is found. Deals with sufficiency of proof.

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14
Q

US v. Aboumoussallem

problem 7.16 pg 452

A

hearsay inside of hearsay; arabic to translator, translator to english
level 2: 801d2A: statement of party opponent
level 1: 801d2E:
must show 1) conspiracy existed 2) speaker is a joint venturer, and 3) statements were during and in furtherance of a conspiracy

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15
Q

613

A

impeachment for prior inconsistent statements to impeach only

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16
Q

Barret

A

admit other statement of W for credibility by 613, not offered for the truth

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17
Q

Harris

A

D/C can impeach, since prior statement inconsistent with todays statement

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18
Q

Ince

A

DA cannot use impeachment as mere subterfuge to get prior statement in

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19
Q

Fletcher

A

if in custody but before Miranda warning given, OK to use silence to impeach

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20
Q

801(d)(1)(A)

A

Inconsistent statements with procedires, now statement in for the truth.
1) subject to purkert then and
2) cross now

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21
Q

801(d)(1)(B)

A

consistent statements to rebut motive to lie. Must show that the consistent statement was made before the motive

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22
Q

NOT FINISHED

804(a)

A

Declarant Unavaliable
a declarant is unavaliable as W if the declarant:
1) is exempted from testifing, about the subject matter of the declarants statement because the court rules that a privilege applies, or
2) refuses to testify about the subject matter despite a court order to do so, or
3) testifies to not remembering the subject matetr, or
4) cannot be present or testufy at trial or hearing because …
5)

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23
Q

804(b)(1)

A

Former testimony

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24
Q

Volland v. City of Chicago

former testimony

A

in criminal trial: p testifies in own defense and is cross-examined by DA and acquitted.
Current civil trial: wants to use prior testimony because he died before the civil suit was heard.
held that motivation between criminal and civil trial was similar enough to admit.
Testimony was on a substantially similar issue- restist arrest has to discuss officer use of force and civil case is on officer use of force.

804(b)(1)

step 1 is predecessor in interest; step 2 is similar motive

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25
Q

804(b)(1)

A

unavaliable plus
a) testimony given as a witness
b) at a trial, hearing, or deposition of the same or different proceeding
c) if the party against whom the testimony is not offered had- or, in a civil case, the predecessor in interest had- an opportunity and similiar motive to develop the testimony by direct, cross, or redirect examination.

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26
Q

804(b)(1)

predecessor in interest

A

is not privity
whether the two parties had roughly commensurate stakes in the outcome of their respective proceedings

dont worry about this in a criminal case- only applies in civil cases!!!

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27
Q

804(b)(1)

Similar motive

A

Motive just has to be close enough
2) 1) the type of proceeding in which the testimony is given 2) trial strategy, 3) the potential penalities or financial stakes, and 4) the number of issues and parties.

Not essential to examine every one- balancing factor test.

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28
Q

United States v. Duenas

804(b)(1)

A

warrant search results in narcotics charges, suppression hearing- officer testifies at that hearing, subject to cross (motive coersed confession)
DA offers transcript of Officers testimony (now dead) from motion to suppress hearing.
1) testimony given as a W
2) at trial, hearing, or deposition
3) if party against whom offered had opportunity and similar motive to develop the testimony by direct, cross, or redirect
motive here is unreliable
not close enough motives

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29
Q

US v. Geiger

A

w testified at motion to supress hearing in state court, then transcript offered at a motion to supress hearing in federal court
admission proper because same motive

30
Q

grand jury

A

no cross!! not even a defense atty there.

W CANNOT BE SUBJECT TO CROSS

31
Q

804(b)(3)(A)

Statement against interest

A

requires contrary to the pecuniary or proprietary interest … subject declarant to civil or criminal liability
Financial or criminal/civil related statements only

32
Q

804(b)(3)(B) 6 factor considerations

A
  1. timing & circumstances of statement
  2. declarants motive in making statements, reason to lie
  3. did declarant repeat statements, even under different circumstances
  4. party or parties to whom statement made
  5. relationship of declarant to opponent of evidence
  6. nature and strength of independent evidence
33
Q

Williamson v. US

801d2E

A

Harris stopped with coke- makes statement that he confessed; Harris refuses to testify- is given immunity, court order, Harris says no- DEA agent testifies to Harris statements
Admit under 801d2E?
not in furtherance of conspiracy- hes talking to the cops
Admit under 804b3?
not all of his statements were self-incriminatory

34
Q

issue in williamson

what is statement (whole conversation v. separate declaration)

A

804b3 does not allow admission of non-inculpatory statements, even if contained in a broader narrative that is generally self-incriminatory. especially if they implicate someone else

35
Q

804b3 rational

A

reasonable people tend to not make self-inculpatory statements unless they believe them to be true.

36
Q

problem 7.24

A

robbery of truck, initially charged M with the crime
Police go to R’s home, mom asks R if he did it R said “ask M, it was her idea”
Not co-conspiratory under 801d2E
Admissible against R- 801d2A
Against M?
Williamson test: only statements that are directly inculpatory to speaker are admissible.

37
Q

804(b)(2)

A

dying declaration
2 rationales:
1. necessity- no other way to get these statements in
2. reliability- wouldnt want to meet their maker with the last thing they ever said being a liar
Have to show that they have personal knowledge for whatever they said

38
Q

Did the V speak on knowledge of impending death

US v. Shepard

A

dying declarations only in when in the hush of imending death. One must know of “a swift and certain doom”
806 allows an attack on most hearsay declarations credibility to the same extent as any other W- including this case

reliability rational; makes it more true the closer to death

39
Q

804(b)(6)

A

forfeiture by wrongdoing; allows statements to be admitted where the D own misconduct rendered the declarant unavaliable as a witness at trial.
elements:
1. the D engaged or acquiesced in wrongdoing
2. intended to render the declarant unavaliable as a W
3. that did in fact render the declarant unavailable as a W

purpose to prevent injustice through intentional wrongdoing

40
Q

803

A

no excluded by hearsay. regardless of whether the declarant is avliable as a witness.

41
Q

803(1)

A

present sense impression: a statement describing or explaining an event or condition, made while or immediatley after the declarant perceived it.

42
Q

803(2)

A

excited utterance. a statement related to a startiling event or condition, made while the declarant was under the stress of excitement it caused

43
Q

the graduate video clip

911 phone call statement made while caller was looking at the person in her home

A

803(1)- yes; made call while immediately perceiving the condition.
personal knowledge: caller testifies what happened during the call and how she knew. (has to be more than just the statement)
803(2)-
declarant under stress of excitement- no; unnaturally calm, knows person by name and offers them a drink while they wait for the cops.

44
Q

Dog Mauling- problem 7.30 pg. 526

Woman was mauled by a dog. Argue that the owners were on notice of dogs dangerousness

A

E1: phone call right after prior incidient
803(2): excited utterance
“dog just bit me” voice was aggitated,
1. Startiling event or condition and
2. while under stress- said that they were angry on the phone.
E2: gave more details after work, at the end of the day.
not excited utterance- too far away in time from the condition.
level of stress has reduced over the hours- regained the capacity for reflection.

45
Q

803(2)

Time issue

A

the issue is whether the declarant has regained the capacity for reflection and ability to produce utterances of conscious fabrications. Statements are no longer reliable.

46
Q

dog mauling. pg 527

women mauled by a dog. whether the owner of the dog was on notice of danger is in dispute.

A

E1: 911 call from across the hall neighbor of owner of the dog.
qualifies under 803(1) and 803(2) BUT issue with basis of knowledge. Neighbor did not go out in the hall- called based on what she could hear and guessed that the dog was attacking the owner too.

47
Q

803(1) & (2)

US v. Boyce

excited utterance & present sense impression

A

admitted due to the unlikelihood of fabrication are reliable. Posner thinks that it is easy to lie quickly. even when no conscious reflection, no reason to think statements are more reliable.
alt opinion: reliability based on circumstances of creation, must be sufficiently believable. no easy to make up complex lies on the spot. ppl make sponateous lies for little things.

48
Q

803(3)

A

then existing state of mind;
motive, intent, plan, emotional, physical condition, sensory. NOT including memeory or belief offered to prove the fact remembered or believed unless it relates to the validity or terms of declarants will.

49
Q

803(3)

Mutual life insurance v. Hillmon

A

Insurance company denies for Hilmons death in Kansas
D theory is that the body in Kansas is not Hillmon but Walters
E1: letter from Walters to sister- letter not produced- sister remembered it
E2: letter from Walter to his fiance- letter produced- stated that he was travling with Hillmon and Brown to farm sheep in Colorado.
held: letters to Walter are admissible as proof of his intention to go to with Hillmon.
Problem with hearsay are faulty perception and memory. when talking about own intention, those are not at risk- not remembering the past, remembering a future intention. makes it reliable- no risk of being wrong of own perception or own memory.

50
Q

803(3)

Shepard v. US

women poisoned by husband with whiskey

A

E: statements of W to the nurse “he poisoned me”
issue: allow statements of the W in to show her state of mind.
2 usages offered:
1. to show state of mind/present intentions of the victim
2. to show that Dr. Shepard poisioned her
Judge thinks 1 is valid but 2 is not. USUALLY allow evidence with limiting instruction.
Here, too much prejudice. ability of jury to not use the statement “dr. shepard poisoned me” is slim.
risk of confusion is too great- evidence is out.

51
Q

803(3) prblm 7.32. pg 536

V at resturant with friends, goes into the parking lot to get weed, never seen again.

A

E1: statement of V to friend that he will meet with a guy for weed at 9:30 pm
E2: statement of V to friend + ill be right back
Hillmon: he had the intent to leave the resturant at 9:30 and that he had the intent to go and meet with the weed guy
House Committee: 803(3) should render statements of intent by a declarant admissible to prove his future conduct, not future conduct of another and we intened to limit Hillmon.

Allowed in: I intend to go to the parking lot at 9:30 and I intend to be right back.
Not allowed: I intend to go get weed from the weed guy.

52
Q

803(4)

A

statements for purpose of medical diagnosis or treatment.
made for and is reasonably pertinent to medical diagnosis or treatement and describes medical history; past or present symptoms or sensations; their inception; or their general cause

53
Q

prblm 7.33 pg 548

elder abuse: caretaker had pushed old man and he hit his head.

A

E1: lawyers testimony that V called and said he hit head
* reject- not an excited uttereance, no other explanation applies
E2: doctors testimony that V called and said he hit head
* admit- fits within 803(4) statement for diagnosis
E3: Doctors testimony that V said D pushed him
the identity of who pushed him is not relevant to treat a head injury from a fall.
* AC notes: statements as to fault would ordinarily not qualify as being made for the purposes of medical treatement or diagnosis.

exception in child sexual abuse within the home, need to know if the perp is in the family to prevent further abuse

54
Q

803(4)

State v. Smith; DV statement taken at hospital that her baby daddy had beat her

A

E1: statements of V to nurse that she was assaulted by the childs father. Indicated that she felt threatened by someone close to her
E2: statement of V to Dr that she was assaulted by the father of her child.
at trial, V recants and testifies that it was an accident
issue: are statements identifying the prep of the act reasonably pertinent to diagnosis and treatment so as to be admissible under 803(4)?
General rule: statements of ID not admissible as not pertinent to D&T. exception with child abuse cases where identification to D&T due to continued abuse.
Held: ID statements can be admitted, but only when DA lays proper foundation under 803(4). could have presented evidence on this but they just didnt. DV has a risk of continued abuse where ID may be pertinent- have ot show evidence of this.

dissent: categorical rule for DV cases because identity is part of treatment

55
Q

problem 7.34 pg 558

V to hospital with broken arm. charged with child abuse

A

E: statement of child to Dr. that his dad broke his arm.
default rule is that it is not allowed in- identity is not necessary to treat a broken arm.
held: admission of these statements was in error, relying on the language of the AC notes that fault is not necessary to treat a broken arm.
Most courts will admit this because of the likelyhood of continued abuse of a child from a member of their home.

56
Q

803(4) food poisoning problem 7.35

civil suit after poising of food by deli employee

A

E1: H says to W “I think I ate some bad meat”
* not a medical care provider
* statement that i need assistance for my illness
* statements to family can be admitted if they are to be passed on to the Dr.
* allowed
E2: Statement of W to nurse on phone
* communicating H statement to nurse
* statement does not have to be from the patient
* allowed
E3: Statement of Dr. to W saying V poisioned
* Dr. is declarant. rule is for the patient/proxy what the problem is, not the otherway around
* Dr. has incentive to be honest about the patient- is relaible
* Typically exclude statements from Dr’s because its an expert opinion

57
Q

803(6)

A

Business record:
1. records are made at or near the time o
2. they are made by, or from information transmitted by, a person with knowledge
3. regularly conducted business activity
4. regular practice to make such records

58
Q

Palmer v. Hoffman

A

accident report made 2 days later is not a business record.
not regular couse of business- not day to day routine. lacks reliability because it is made with a purpose of litigation.
held: not in the regular course of business. 1) regular course is the systematic counduct of the business as a business; 2) trustworthiness comes from routine nature of the records, these are not in the usual routine as too much motivation to cover up misconduct

skeptical of trial preparation records

59
Q

US v. Vigneau

Drug conspiracy involving money orders

A

E: 21 money transfer forms from Vigneau
Bank does not verify the identification of the sender- cannot prove that D sent the money transfers that have his name and address on.
Held: not business records because the statements at issue are not part of the business routine, but made by one outside the business itself.
do not embrace infromation made by someone outside the company because it lacks reliability

60
Q

Lawn Mower pg. 575

suit for injuries when a lawnmower knocks her over

A

E1: return records for same model of mower to reflect reason for return as same issue that caused injury.
need to show:
1. records are made at or near the time of the report
2. they are made by, or from information transmitted by, a person with knowledge of the report
3. the garden store is a regularlay conducted business activity
4. the garden stores regular practice to make such records

61
Q

803(8)

A

Public records
(i): the offices activities
(ii) a matter observed while under a legal duty to report, but not including in a criminal case, a matter observed by law enfocemement personel
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation

62
Q

803(10)

A

Absence of record to show nonexistence
the testimony or certification is admitted to prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

relaiability: public officials assumed to do job properly, so we can assume records reliable
necessity: public officials deal with so many events that unlikely to have independent recollection

63
Q

803(8) Products liability case

Beech v. Rainey

A

D wants to bring in a report made on the cause of the crash- said that it was impossible to tell but then talks about possibilities for cause (user error and malfunction)
trail court admitted almost all report except for the theory on malfunction.
Issue: does rule 803(8) allow only facts or all of report?
Holding: entire report is admissible- not inadmissible because of opinion. Unless, there is a problem with trustworthiness (too much motivation too be out) it can be out and report must contain factual findings (if not, this rule does not apply)

64
Q

803(8)

Broad purposes of the rules

A

general approach to relax the traditional barriers to opinion testimony.

65
Q

803(8)

How to determine trustworthiness

A
  1. timeliness of the investigation
  2. special skill or expertice of the official
  3. whether a hearing held and the level at which it was conducted
  4. possible motivation problems, (Palmer; trial prep records)
66
Q

Police records against D

United States v. Oates

criminal

1977

A

report from a chemist in a drug case.
can this be admitted under 803(8) as a public record?
No; cant use it against the accused in a criminal case- its in the plain language of the case.
Prosecutor tried to get in using 803(6); court says no- clear intent was to exclude law enforcement reports in a criminal case.

67
Q

police records against D

US v. Hayes

1988

A

criticized Oates; non-adversarial records may be
admissible as business record when the person testifies

68
Q

police records against D

US v. Weiland

2005

A

No admission with rule 803(6). Public records must be admitted under rule 803(8) (public record exception) if “routine and non-adversial matters”
reliable because its routine. not adversarial and there is a public duty to create

69
Q

Dallas County v. Commercial Union Assurance Co.

A

insurance dispute:
Did dome collapse because of a lightning strike or became of an old fire.
D offered a newspaper from 1901 of a fire in the courthous.
Court Considered:
1. reliability/trustworthiness
i. circumstances are such that sincere and accurate statement is likely
ii. other considerations contradicate plan to falsify
iii. made with publicity so error would have been corrected
2. necessity: standard is great practical inconvenience
at this point, the paper can give better evidence than anyone who is still alive to have seen it.
Held: certain hearsay may be admitted if it meets standards of reliability and necessity equivalent to hearsay exceptions

70
Q

807(a)

2011

A

in general. under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically coered by a hearsay exception in rule 803 or 804.
(1) the statement has equivalent circumstantial gauarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probabtive on the point for which it is offered than any other and evidence that the proponent can obtain through reasonable efforts
(4) admitting it will best serve the purpose of these rules and the interests of justice.
VERY RARE - essentially never used.

Evidence (7 decks)

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