Hearsay Flashcards
What are the NONHEARSAY categories of evidence?
nonassertive conduct
statement not offered for its truth
prior inconsistent statement made under oath
prior consistent st. to rebut charge that W is lying/exaggerating
prior consistent st. offered to rehab W impeached on other non-character ground
prior statement of identification
opposing party’s statement (including vicarious admission)
What the hearsay exceptions where unavailability is required?
former testimony dying declaration statement against interest statement of personal or family history statement offered against party procuring declarant's unavail.
What are the hearsay exceptions where availability is immaterial?
excited utterance present sense impression present state of mind present physical condition statement for medical diagnosis or treatment recorded recollection business records or absence thereof public reports and records records of vital statistics judgment of prior convictions ancient docs. document affecting prop. interest learned treatises reputation family and market reports
former testimony (HEU) must:
be statement made under oath at same or other proceeding at which the party against whom it is offerd had oppt/motive to develop the testimony
statement against interest (HEU) must:
be statement against declarant’s pecuniary, proprietary, or penal interest when made
dying declaration (HEU) must:
be statement made while decl. believed death was imminent, and st. concerns the cause/circumstances of the impending death
statement of personal or family history (HEU) must:
be made by family member (re birth, death, marriage, etc.) or one intimately associated w/ family
statement offered against party procuring decl. unavail (HEU) must:
be made against party who intentionally procured decl’s unavailability
What is hearsay?
statement, other than the one made by the declarant while testifying, offered in ev. to prove the truth of the matter asserted
What constitutes a “statement” for H?
- oral or written assertion or
2. nonverbal condcut intended to be an assertion
When is an out-of-court statement offered NOT to prove its truth?
- verbal acts or legally op. facts (words of K, defamatory words)
- statements offered to show effect on listener (prove notice in neg. case)
3 statement offered as circum. ev. of declarant’s state of mind (insanity)
A prior statement by TESTIFYING W who is subject to cross-exam is NOT H if:
- prior statement is inconsistent w/ declarant’s in-court testimony and the statement was given under oath in prior proceeding;
- prior statement is consistent w/ declarant’s in-court testimony and offered to rebut lying/exagg charge or to rehab W (non-character, like for sensory deficiency); or
- prior statement is one of identification of a person
When is an opposing party’s statement (any st. made by a party and offered against that party) adm as NH:
it does not need to have been against the declarant’s interest when made; can be in form of opinion; personal knowledge is not required
When is an agent/employees statement admissible against principal under vicarious exemption?
if statement 1. concerned any matter within scope of employment and
2. made during existence of employment relationship (the topic needs to be about something within the scope of their position and cannot be made after termination)
When is a declarant deemed “unavailable”?
- exempt from test. bc of privilege
- refuses to test. despite court order
- testifies that he cannot remember subject matter
- unable to testify due to death, or physical/mental illness, or
- absent (beyond reach of court’s subpoena) and proponent unable to procure attendance through reasonable means
The testimony of now-unavail W is admissible if:
- test. was given under oath (trial, hearing, depo) in same or different case; and
- party against whom test. is offered had opportunity and motive to develop it by cross/direct/redirect
needs to party in former action re same subj matter (not same COA)
Is grand jury test. of an unavail. decl. admissible against the def?
no - no oppty to cross
Note: prior inconsistent statement given under oath (in gj proc) would be adm. if W is currently testifying (diff, NH)
When is a statement by a PERSON now unavail as W adm?
if it was made against that person’s pecuniary, proprietary, or penal interest at that time (need personal knowledge of the facts and aware that st. was against interest when made)
In criminal cases, when are statements against interest adm?
when there are corroborating circum. indicating trustworthiness of st. against penal interests
When is a dying declaration of now-unvail W adm?
in any HOMICIDE (not attempted H) or CIVIL action if:
- decl. believed his death was imminent (does not need to die); and
- statement concerned cause/circums. of what he believed to be his impending death (based on perceptions at that time - no speculation allowed)
What is the traditional rule re dying declarations?
- declarant needs to ult. die of injury; and
2. cannot be used in civil cases
What constitutes and excited utterance (HE)?
st. relating to startling event
made while under stress of the excitement of event
(before time to reflect)
What constitutes a present sense impression (HE)?
st. describes/explains event or condition
made while or immediately after decl. perceived event/condition
** the event does not need to be startling
What constitutes a present state of mind st (HE)?
st. of then-existing st of mind (intent, motive, plan) or
emotional, sensory, physical condition
** this does not include st. of memory or belief
What constitutes a declaration of physical condition (HE)?
two types
- decl. present physical condition (purpose doesn’t matter)
- st. made for purpose of obtaining med. diagnosis/treatment
- st can describe med. history, past or present symptoms, inception/general cause IF reasonably pertinent to diagnosis/treatment
- can be statement made for family member
- cannot be about fault
What constitutes business records (HE)?
a record made in the regular course of business
consisting of matters w/in personal knowledge of one w/ business duty to record
(lack of record can show nonoccurrence of event)
What constitutes a recorded recollection (HE)?
record by a W
who cannot remember fact
record made while facts were fresh
