Gash's Definitions Flashcards
Relevance
“Evidence is relevant if it has ‘any tendency’ to make the existence of any consequential fact ‘more or less probable’”
Hearsay
- Declarant
- Statement
- Out of court
- Offered for truth of the matter asserted
Non-hearsay uses
Impeachment Verbal Acts Effect on listener/reader Verbal Objects State of Mind Evidence of memory or belief
Prior Inconsistent Statements
- Declarant testifies at trial/hearing
- Declarant now is subject to cross examination
- Testimony is inconsistent with statement
- statement was made under oath/penalty of perjury
- statement was made at trial, hearing, deposition, or other proceeding
Prior Consistent Statements
- Declarant testifies at trial/hearing
- Declarant subject to cross examination regarding the statement
- Statement is consistent with the declarant’s testimony
- Offered to rebut an express or implied charge of recent fabrication or improper influence or motive
Prior Statements of Identification
- Declarant testifies
- Declarant subject to cross
- Declarant made an ID after perceiving person
Statements by Party Opponent
o Statement made by party
o Statement offered against party
Adoptive Admissions
- Statement about which party manifests an adoption or belief
- Offered against the party
Admissions by Speaking Agents
- Statement made by a person authorized to speak on the party’s behalf
- Offered against party
Admission by Employee/Agents
- Statement by a party’s agent/employee
- Concerning a matter within the scope of employment
- made within existence of agency or employment (does not mean during business hours or on duty. Means while still employed)
- offered against the party
Coconspirator Exception
- Existence of a conspiracy
- Declarant is a member of the conspiracy
- Defendant is a member of the conspiracy
- Statement made during conspiracy (pendency)
- Statement has to be in furtherance of the conspiracy (furtherance)
- Offered against a party
Present Sense Impression
o Statement describing or explaining event or condition
o Made while declarant perceiving event or condition OR immediately thereafter
Excited Utterance
o Statement relating to startling event or condition
o Made while declarant under stress of excitement of event or condition
State of Mind
- Then-existing Physical Condition; OR
- Then-existing mental condition; OR
- Subsequent Conduct; OR
- Fact about a will
Declarant Unavailable
- Declarant claims a privilege
- Declarant refuses to testify
- Declarant testifies to not remembering the subject matter
- Declarant dead or infirm
- Declarant is unavoidably absent
o Statement is available if proponents actions are keeping witness from testifying
Statements for Medical Treatment
• Statement made for purposes of medical diagnosis/treatment
AND
o Statement describes medical history; or
o Statement describes past or present symptoms or sensations; or
o statement describes the inception or general character or cause; AND
• Statement reasonably pertinent to diagnosis or treatment
Past Recollection Recorded
- Memorandum or record; AND
- Concerning matter about which witness once had knowledge; AND
- Now knowledge is insufficient to testify fully & accurately; AND
- Statement made or adopted by witness; AND
- Made while fresh in witness’s memory; AND
- Accurately reflects once-fresh knowledge
Business Records
- A record of business in any form
- Record contains acts, events, conditions, opinions, diagnoses
- Record made at or near time by, or from information transmitted by, person with knowledge
- Made in the ordinary course of business
- Kept in the ordinary course of business
- Foundation laid by custodian or other qualified person
Public Records
• Records of a public office setting forth
o Activities of the office, or
o Matters observed and reported pursuant duty, excluding reports by law enforcement personnel in criminal cases, or
o Factual findings from investigations pursuant to legal authority, except against criminal defendants
-Unless untrustworthy
Former Testimony Exception
o Declarant Unavailable (as a Witness)
o Testimony given at a trial, hearing, or deposition in same or different case
o Offered against party who had similar motive and opportunity to examine declarant in prior proceeding
• If in a civil case, predecessor in interest had similar motive and opportunity
***Leaves out Grand Jury testimony. Does not qualify as opportunity to cross-examine because it is only prosecution, grand jury, and the witness
Dying Declarations
o Declarant unavailable
o In homicide case or civil action
o Declarant makes statement while believing death imminent
o Statement concerns cause or circumstances surrounding death
Impeachment (attack on witness’s credibility)
o Bias o Sensory/Mental Capacity o Untruthful disposition o Prior Inconsistent statement o Contradiction
Contradiction (Type of Impeachment)
Types of Contradiction
• Contradiction and substantive point
• Contradiction and impeaching point
• Contradiction on collateral matter (not admissible)
Lay Opinion Testimony
o Rationally based on perception witness
o Helpful to clear understanding of W’s testimony or the determination of a fact in issue
o Not based on scientific, technical, or other specialized knowledge
*Firsthand knowledge required
