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Evidence > Hearsay > Flashcards

Hearsay Flashcards

1
Q

Rule 801 Definitions: 801(a), what is a statement

A

A statement is a person’s (1) oral assertion, (2) written assertion, or (3) nonverbal conduct if the person intended it as an assertion

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2
Q

Rule 801(b): What is a declarant?

A

A declarant is a person who made the statement

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3
Q

801(c): What is the definition of Hearsay?

A

Hearsay means a statement that:

  1. the declarant does not make while testifying at the current trial or hearing; and
  2. a party offers in evidence to prove the truth of the matter asserted in the statement
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4
Q

Rule 801(a)’s Intent test:

A

a test for determining whether a particular item of nonverbal conduct evidence is hearsay or not. The question centers on intent. If nonverbal conduct is intended as an assertion it IS HEARSAY

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5
Q

801(d): Governs what?

A

It offers a lists 8 types of out of court statements that are exempt from the definition of hearsay.

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6
Q

FRE 801(d)(1): Does what?

A

Admits statements made outside of court by a hearsay declarant who is testifying as a witness at trial. This means that the testifying declarant is subject to cross-examination about a prior statement

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7
Q

801(d)(1)(A): Prior Inconsistent Statement

A

allows admission when: Prior statements are inconsistent with statements given at trial and prior statements were given under penalty of perjury at formal court proceeding

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8
Q

801(d)(1)(B): Prior Consistent Statements

A

To be admissible: the statement must be consistent with the Declarant’s offered testimony and be offered:

  1. to rebut a charge that the declarant is lying; or
  2. to rehabilitate the declarant’s credibility after it is attacked.
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9
Q

801(d)(1)(C): Prior Statements of ID

A

allows admission of prior statements of ID when a statement ID’s a person as someone the declarant perceived earlier

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10
Q

801(d)(2)(A): Party’s Own Statement

A

a statement is not hearsay if the statement is offered against an opposing party and was made by the party (party’s own statement)

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11
Q

801(d)(2)(B): Adoptive Admission

A

a statement that is not hearsay if offered against an opposing party and the party has done something to adopt the statement. May adopt through words, conduct, or silence.

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12
Q

801(d)(2)(C): Admissions by agents, servants, and employees

A

a statement that is not hearsay if offered against an opposing party and if the statement is on the subject and made by the person whom the party authorized to make the statement

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13
Q

801(d)(2)(E): Co-conspirators admissions

A

a statement is not hearsay if:

  1. offered against an opposing party and;
  2. the declarant and party are both members of the same conspiracy,
  3. the statements was made during the conspiracy, and
  4. the statement was in furtherance of the conspiracy
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14
Q

What does rule 803 govern in general?

A

exceptions to the Rule against Hearsay regardless of whether the declarant is available as a witness

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15
Q

803(1): Present Sense Impressions:

A

a statement is not excluded if:

  1. an event occurred,
  2. the statement describes the event, and
  3. the declarant made the statement while or immediately after perceiving the event
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16
Q

803(2): Excited Utterances

A

a statement is not excluded if:

  1. a startling event occurred,
  2. the statement relates to the startling event,
  3. the statement was made by the declarant while under the stress of excitement, and
  4. the stress was caused by the startling event
17
Q

803(3): Declarant’s statement of their then existing state of mind

A

a statement is not excluded if: the statements express’s the declarant’s state of mind that is currently existing at the time of the statement.

18
Q

803(4): Statements made for Medical Diagnosis

A

a statement is not excluded if: the statement was made for medical diagnosis or treatment. The statement must describe the medical history, past, or present symptoms and can be made by the patient, family, friends, etc. NOT THE DOCTORS

19
Q

803(5): Recorded Recollections

A

a statement is not excluded if:

a. the declarant is testifying as a witness,
b. the statement is in the form of a record,
c. the witness has personal knowledge,
d. the witness cannot remember enough to testify fully
e. the statement was made/adopted by the witness when the matter was still fresh in the witness’s memory
f. the statement reflects the witness’s knowledge accurately

20
Q

803(6); Record of regularly conducted activity

A

a statement is not excluded if:

a. the statement is a record of an act, event, or condition,
b. was made at or near the time of the act
c. was made by someone with knowledge of the act or transmitted by someone with knowledge
d. and the record was kept in the regular course of business (regular practice to make record)

21
Q

803(8)(A)(i): Public Records and Reports

A

allows for the admission of: records of the activities of public offices and agencies

22
Q

803(8)(A)(ii): Public Records and Reports

A

allows for the admission of matters observed pursuant to a public duty to report by employees of public offices

23
Q

803(8)(A)(iiI): Public Records and Reports

A

allows admission of public investigative reports, including factual findings

24
Q

What does Rule 804 cover in general?

A

Exceptions to the Rule against Hearsay when the Declarant is unavailable as a witness

25
Q

804(a): Grounds for a finding of Unavailability

A

a declarant is considered unavailable as a witness if the declarant:

  1. is exempt from testifying due to privilege
  2. refuses against a court order
  3. testifies not to remember
  4. Cannot be present because of death or infirmity
  5. is absent from trial and proponent of statement has not been able to procure
26
Q

804(b)(1): Former Testimony in general

A

the statement is admissible if the declarant is unavailable as a witness and: the statement is in the form of testimony given at a hearing or deposition.

27
Q

804(b)(2): Dying Declarations

A

the statement is admissible if the declarant is unavailable as a witness and:

a. the statement concerns the causes or circumstances that led the declarant to believe death was impending
b. the statement was made while declarant believes death to be imminent; and
c. the statement is offered in a homicide prosecution or civil case.

28
Q

804(b)(3): Declarations Against Interest

A

the statement is admissible if the declarant is unavailable as a witness and

a. the statement is against interest to a high degree
b. the contents of the statement at the time the statement was made are:
1. against the pecuniary or proprietary interest of the declarant
2. could subject to the declarant to civil or criminal liability; or
3. could render invalid a claim held by the declarant

29
Q

804(b)(4): Statement of Personal or Family History:

A

the statement is admissible if the declarant is unavailable as a witness and the contents of the statement concern the declarant’s own personal history or personal or family history of one of the declarants relatives or friends

30
Q

804(b)(6): Forfeiture by wrongdoing

A

the statement is admissible if the declarant is unavailable as a witness and:

  1. the party engaged in wrongdoing
  2. which was intended to make the witness unavailable
  3. and did accomplish that goal, and
  4. the declarant’s statement is offered against the party
31
Q

What does Rule 805 cover?

A

Hearsay within hearsay

32
Q

Meaning of Rule 805

A

Hearsay within hearsay is not excluded if each part of the combined statements conform with an exception to the rule

33
Q

What does Rule 806 Cover?

A

Attacking and Supporting the Declarants credibility

34
Q

Meaning of rule 806

A

when a hearsay statement has been admitted into evidence, the declarant’s credibility may be attacked or supported by evidence that would be admissible for those purposes if the declarant had testified as a witness.

35
Q

WRE 908.01(4): Statements that are not hearsay

A

a statement is admissible if the declarant testifies at the trial and is subject to cross-examination concerning the statement and the statement is:

  1. inconsistent with the declarant’s testimony
  2. consistent with the declarant’s testimony and is offered to rebut an express or implied claim of lying
  3. One made in IDing a person soon after perceiving them
36
Q

WRE 908.03(6m): Patient Health Records

A

no declarant necessary to offer patient health care records if the party, at least 40 days before trial: does one of the following

  1. Serves upon all appearing parties a complete duplicate of the patient health care records
  2. notifies all parties that a duplicate is available for inspection at a specified location during regular business hours.
37
Q

WRE 908.03(18): Learned Treatises

A

a published article on a subject is admissible if:

  1. the judge takes judicial notice; or
  2. a witness expert in the subject testifies that the writer of the statement is recognized in the writer’s profession
38
Q

FRE 803(18): Statements in learned treatises, periodicals, or pamphlets

A

Under the federal rule’s to be admissible:

a. the document must be introduced by an expert witness (on cross or relied on in direct)
b. The doc then has to be established as reliable authority
c. the expert then reads the selected passage into the record

39
Q

FRE 803(16): Statements in Ancient Documents

A

ancient document statements are admissible if:

a. the doc was prepared before January 1, 1998
b. the doc’s authenticity is established.

Evidence (7 decks)

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