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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

Define hearsay

A

An out of court statement of a person (either written or oral) offered for the truth of the matter asserted

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2
Q

What are the 3 types of statements that are not hearsay?

A
  1. Verbal acts (legally operative words)
  2. Effect on the listener
  3. State of Mind
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3
Q

What are the two types of statutory non-hearsay? **

A
  1. Prior Statements of Trial Witnesses
  2. Statements by a Party-Opponent

NY - These are exceptions, not exclusions

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4
Q

When does an out of court statement constitute a verbal act?

A

When the words have independent legal significance. The statement is offered to show the legal effect of the words.

Examples

  1. Yelling “fire” in a movie theater - illegal
  2. “I accept your offer” - creates K
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5
Q

When may an out of court statement be offered for effect on the listener?

A

When the statement is relevant to show the impact it had on the person who read / heard it. It is not offered for the truth, but to show that it evoked fear, created a motive, or put someone on notice.

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6
Q

When may an out of court statement be offered to show the speaker’s state of mind?

A

Examples:

  1. A says “I’m Elvis” - to prove he’s crazy
  2. A’s false alibi offered to show guilty conscience
  3. Questions asked to show lack of knowledge
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7
Q

What are the three types of prior statements of witnesses that are non-hearsay under the Federal Rules?

A
  1. Prior statement identifying a person
  2. Prior oral inconsistent statement under oath
  3. Prior consistent statement for rehabilitation
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8
Q

How are the non-hearsay prior statements of a testifying witness treated in NY?

A
  1. They are exceptions, not non-hearsay
  2. Prior inconsistent statements can be used only to impeach
  3. Prior consistent statement can be used only to rehabilitate a witness
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9
Q

What is a statement by a party-opponent?

A

A statement made by the opposing party that is admissible for its truth if offered against the opposing party (comes in as substantive evidence)

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10
Q

How is a statement by a party-opponent treated differently between NY and the FRE?

A

FRE - Exclusion (it’s not hearsay)

NY - Hearsay subject to an exception

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11
Q

Does a statement by a party-opponent have to be against the party’s interest when made?

A

No. It can be self-serving.

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12
Q

Does the party-opponent have to be the one making the statement?

A

No. If the party-opponent is silent when a reasonable person would protest, he has adopted the statement.

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13
Q

Does the statement of a party-opponent exclusion/exception apply to vicarious party admissions? **

A

Yes, if the statement is made by and employee/agent and:

  1. Statement is within scope of agency / employment; and
  2. Statement is made during agency / employment relationship (look for someone getting fired or quitting)

NY - Agent / Employee must have authority to speak on the matter (limitation on federal rule)

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14
Q

Are statements of a co-conspirator admissible under the party-opponent exclusion / exception?

A

Yes, they are admissible against a party who is a member of the conspiracy if the statement:

  1. Was made during the conspiracy; and
  2. In furtherance of the conspiracy
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15
Q

What are the four hearsay exceptions that require the declarant be unavailable?

A
  1. Dying declarations
  2. Statement against party interest
  3. Former testimony
  4. Forfeiture by wrongdoing
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16
Q

What is a criminal defendant’s right of confrontation?

A

The Sixth Amendment requires that a defendant have the opportunity to cross-examine the witnesses against him.

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17
Q

When does a hearsay statement subject to an exception violate the confrontation clause?

A
  1. Statement is testimonial
  2. Declarant is unavailable; and
  3. Defendant had no opportunity to cross-examine the witness
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18
Q

When is a statement considered testimonial?

A

Look for formality / created for the purpose of generating evidence for prosecution.

  1. Grand jury testimony
  2. Sworn affidavits
  3. Statements to police during interrogation
  4. Forensic lab reports created to accuse a targeted individual
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19
Q

What is the ongoing emergency exception for testimonial statements?

A

When a statement is made to the police to help them meet an ongoing emergency, the statement is not considered testimonial.

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20
Q

When do forensic lab reports not violate the confrontation clause?

A

When there is no targeted individual. In this case, they are not testimonial.

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21
Q

What is the forfeiture exception to hearsay and confrontation? **

A

A defendant can’t take advantage of hearsay or a confrontation issue if the court finds:

  1. By preponderance of the evidence (MBE); or
  2. By clear and convincing evidence (NY) that
  3. D’s conduct was specifically designed to prevent the declarant from testifying
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22
Q

When is testimonial evidence admissible despite witness unavailability?

A
  1. Forfeiture by Defendant
  2. D had prior opportunity and motive to cross-examine (must be essentially same issue)

Note: No x-exam in grand jury proceedings, so that will never be admitted against D under option 2, but can be admitted against prosecution.

23
Q

What are the grounds for witness unavailability? **

A
  1. Privilege
  2. Absence from the jurisdiction
  3. Illness / Death
  4. Lack of memory
  5. Stubborn refusal to testify
  6. Declarant located 100+ miles from courthouse **
  7. Declarant is physician **
24
Q

When a witness is unavailable on the exam, what should you look for?

A

Look to see if any of the unavailability exceptions will apply to that witnesses statements.

25
Q

What is a statement against interest?

A

Any statement against the declarant’s pecuniary, proprietary, or penal interest.

26
Q

When is a statement against interest admissible for its truth?

A
  1. Statement is against interest when made
  2. Made by any person (not just a party)
  3. The declarant had personal knowledge
  4. The declarant must be unavailable
27
Q

What is the additional requirement for statements against penal interest in criminal cases?

A

There must be corroborating evidence that suggest the statement is trustworthy

28
Q

Why are statements against interest excepted from the hearsay rule?

A

They are trustworthy because a person wouldn’t make a statement against their pecuniary, proprietary, or penal interest if it were not true.

29
Q

What is a dying declaration?

A

A statement made while the declarant reasonably believes impending death is certain, the statement is about the cause of death, and the declarant is unavailable.

30
Q

When may a dying declaration be admitted in a criminal case?

A

Only for homicide cases (i.e., the declarant must have actually died)

31
Q

When may a dying declaration be used in a civil case? **

A

MBE - Any kind of civil case
NY - No civil cases, homicide only

Declarant need not die in for civil cases, simply unavailable (coma, etc)

32
Q

What is an excited utterance?

A

A statement about a startling event made while the declarant is still under the stress or excitement resulting from the event

33
Q

Must a declarant be unavailable to admit an excited utterance?

A

No

34
Q

What factors are considered in determining whether a statement is an excited utterance?

A
  1. Nature of the event (how exciting / traumatic)
  2. How much time as passed
  3. Visual clues in the fact pattern (exclamatory phrases, excitement oriented verbs)
35
Q

What is a present sense impression? **

A

A description of an event while it is happening or extremely soon thereafter (seconds, not minutes)

NY - requires corroborative evidence

36
Q

When does a statement concern the declarant present state of mind?

A

When it describes the declarant’s feelings, emotions, or thoughts

Declarant has unique knowledge of what is in their own head

37
Q

Must a declarant be unavailable to admit a present sense impression?

A

No

38
Q

Must a declarant be unavailable to admit a statement of present state of mind?

A

No

39
Q

For what purpose is a declaration of intent admissible? (Hillmon Doctrine)

A

To show the declarant acted in accordance with his intent.

Example: “I’m going to meet Joe” can be offered to show that the declarant went to meet Joe.

40
Q

“I’m going to meet A in the McDonald’s parking lot.”

Can this statement be offered to show A went to the parking lot? **

A

MBE - No.

NY - Must have the following:

  1. Corroborative evidence that A went there
  2. Evidence of a relationship with A
  3. Declarant must be unavailable
41
Q

What is a statement of present physical condition? **

A

A statement to anyone (not just a doctor) about the declarant’s present physical condition.

Example:
“My arm hurts”

NY - If made to a layperson, the declarant must be unavailable.

42
Q

What is a statement made for the purpose of receiving medical treatment or a diagnosis?

A

A statement to anyone (though usually a doctor) concerning the declarant’s:

  1. Present symptoms
  2. Past symptoms; or
  3. General cause of declarant’s injuries
43
Q

What qualifies for admission under the exception for statements made for medical purposes?

A

Only that which is medically relevant. Anything else is excluded.

It does not apply to statements made to a physician for the sole purpose of having them testify as an expert at trial.

44
Q

What is considered a business record under the business records exception?

A
  1. A record of a business of any type;
  2. Made the in regular course of business (duty);
  3. The business regularly keeps such records;
  4. Made at or about the time of the recorded event;
  5. Contents consist of either (i) info observed by employees of the business or (ii) a statement that falls within an independent hearsay exception
45
Q

Are police reports business records?

A

Yes, and any recorded observations by the officer taken in the scope of their employment are admissible. However, if a layperson gives a statement, it is not admissible unless it fits into an independent hearsay exception / exclusion.

46
Q

A has a car collision with B. 1 hour later, Officer C arrives. Officer C notes the length of the tire marks on the street and the condition of both cars. W, a bystander, tells Officer C that A ran a red light and collided with B. All this information is included in Officer C’s report. Which portions of the report, if any, are admissible?

A

Admissible:

  1. Length of tire tracks (personal knowledge / duty)
  2. Condition of the cars (same)

Inadmissible:
1. Bystander statement. Officer C has no personal knowledge and the statement doesn’t fit into any other hearsay exception.

47
Q

How are business records proven? **

A
  1. A witness with personal knowledge is called to testify to the five elements; or
  2. Written certification under oath attesting to the elements (Limits in NY)
48
Q

What are the only times business records may be proven by certification in NY?

A
  1. Civil case - Only business records of a non-party may be proved through certification if the records were produced for inspection during pretrial discovery
  2. Any case - Hospital / State or local gov’t records
49
Q

What is considered a public record under the public records exception? **

A

Records of a public office that set forth:

  1. Activities of the office / agency
  2. Matters observed pursuant to a legal duty
  3. Findings of fact / opinion resulting from a legally authorized investigation (even if data came from outside sources)

NY - This exception not well established, so try the public records exception first

50
Q

What public records are not included in the hearsay exception?

A

Police reports prepared for prosecutorial use

51
Q

What is double hearsay?

A

When a hearsay statement is included within another hearsay statement

Example: police report that includes an excited utterance

52
Q

Are double hearsay statements admissible?

A

Only if both statements are independently admissible under a hearsay exception / exclusion

53
Q

How are hearsay declarants impeached?

A

In the same way a testifying witness is impeached (even if the declarant is absent)

Example:
Call a witness to testify that declarant has bad character for truthfulness

Note: Usual rules for prior inconsistent statements are waived for impeachment purposes

Evidence (6 decks)

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